remedy for the damage he suffred in the losse of his Credit and the damage in his Trade for in the former Action he recovered no damages for that for the Iury never took that into their consideration for they had no power to take any damages into their consideration which happened after the Trespass done for which the Action was brought but only for the breaking open of the Shop and the taking away of his Goods and although he might at the first have brought his Action upon the case as he hath now done yet he was not commpellable thereto but had his Election to bring either an Action upon his case or an Action of Trespass as should most make for his advantage Election of Actions for this Election of Action belongs to every subject as his birth right and he is not to be hindred from it Adjournatur Remington and Kingerby Mich. 18 Car. rot 72. REmington grants a rent out of certain Lands to Fawne with a clause of distress Error upon a Judgement in an Annuity in the Common pleaâ— and a nomine poenae in the deed for the non payment thereof according to the time lymited the rent is behind after the time lymited by the nomine poenae Fawne brings a writ of Annuity in the Common Pleas for the Arrerages of the Annuity and for the moneys due upon the nomine poenae and hath Iudgement Remington brings his writ of Error in this Court to reverse this Iudgement and Assignes for Error that the writ of Annuity did not lie for the nomine poenae though it did for the rent for though it was in the Power and Election of Fawne to charge either the land out of which the rent was to issue with the rent behind by distress and so to make it a rent charge or else to bring his writ of Annuity for it against Remington and so to charge his person yet he had no such Power for the nomine poenae because it was in the nature of a rent and was necessarily to issue out of the Land Nomiâ—e yoe 1 ae and not to be charged upon the Person and it was further alleged that a nomine poenae was an uncertain thing and comes not within the Statute of 21 H. 8. touching Avowries as a rent charge doth which is certain Another exception was that it appears notin the Record that Fawne did make a good demand of this nomine poenae upon the Land out of which the rent was issuing as he ought to have done before he could bring an Action for it for though there do appear to be a demand yet if it appear not to be a legal demand it is Null and the party shall take no benefit by it Adjourned Nuls and Cheney 21 Car. B. R. AN Action of the case was brought for these words Arrest of Iudgement in in Action upon the case I do accuse you to be a Witch and require you to be searched and a verdict was given for the Plaintiff the Defendant moves in Arrest of Iudgement that the words are not actionable because it is not averred that the party accused had done any hurt to Cattell or otherwise or hath had any Communication wit the Devill And so the Court held because the words spoken did not bring the Party of whom they were spoken within the Statute of 10 Jac concerning Witch-Craft Wingfield and Sherwood VVIngfield brings an Action of Covenant against Sherwood his Lessee for yeers Error upon a Iudgement in an Action of Covenant and declares that he had Covenanted by indenture that hee would not cut down more tymber growing upon the lands demised than sufficient for needful and necessary reparations of the houses and buildings let unto him and for breach Assigns that he had cut down tymber to the value of ten pounds and had converted them to his proper use and upon this hath a Verdict and a Iudgement against him Sherwood brings a writ of Error in this Court to reverse this Iudgment and Assigns for Error that there was variance between the Covenant expressed in the lease and the Covenant set forth in the declaration whereupon the breach was assigned and so the Iudgement was not given upon a breach of the Covenant expressed in the lease viz. That he should not cut down more tymber than was necessary for reparations for by this breach the Plaintiff supposeth that the Defendant had Covenanted not to cut down tymber to employ to his own use which is not the Covenant expressed in the lease but another And though the Defendant had cut down tymber and converted it to his own use Covenant this was not a breach of the Covenant expressed in the Indenture except it be averred that he cut down more than was necessary for reparations and converted it to his own use and for this Error the Iudgement was reversed Whitwell and Short Trin. 21. Carl. rot 227. WHitwell brought an Action of Trespass for assaulting beating Arrest of Iudgement in an Action of Trespasse and wounding him against fowr several persons three of them plead not guilty and are found guilty and the fourth pleads not guilty to part and iustifies for the rest viz. The wounding and is found guilty as to the wounding only yet the verdict was fond generally for the Plaintiff and intire damages assessed and Iudgement given and a writ of Error was brought and the Error assigned was that the damages ought not to be entire against all because that the fourth person was only found guilty of part of the trespass to wit the wounding and therefore as to him the damages ought to have been severed in relation only to the wounding and not as it is for so damages should be given twice for the same thing Several damages First against the three and then against the fourth which the Court granted and reversed the Iudgement VVard and Coggin Pasc 22 Car. rot 257. VVArd brings an Action of debt in the Common pleas against Coggin Error upon an action of Debt and declares that the Defendant in consideration that he the Plaintiff at the request of the Defendant had sold certain wares to I. S. did assume and promise to him the Plantiff that he would pay such a sum of money for them and for non payment accordingly he brings his Action and hath a Verdict and Iudgement The Defendant brings his writ of Error in this Court to reverse this Iudgement and Assigns for Error That an Action of debt lyes not in this case because the debt which the Defendant promised to pay and for which the Action is brought was raised and became a duty before the promise made for the payment of it and so an Action of debt cannot be grounded for it on the promise And the words in the declaration do sound meerly upon a promise upon which a good consideration for an Action of the case may be grounded Case but not to bring an
alias Heriots with the appurtenances whereof the said Close called Pipers Down was parcell which tenement and Close were parcell of the said manour and was then and had been time out of mind demised and demiseable in Fee by Copy of Court roll of the said manour did build a new messuage upon the said Tenement and did afterwards by his Letters patents under the great seal grant the office of Keeper and keeping of the said messuage to Iohn Gate for term of his life with all the Lands Tenements c. thereto belonging or adjacent and did also by the same Letters patents give and grant unto the said Iohn Gate amongst other things the Lands belonging to the said new built messuage whereof the said Close called Pipers down was part for Term of his life for the exercising of the said office with an averment in the plea that before that time there was no such office of the keeping of the said house and that the King did not know nor was at the time of the grant enformed that the said Tenement and Lands whereof the said Close was parcell were Copyhold of the said manour After the grant made to Iohn Gate as aforesaid H. the 8. dyed seised of the said manour of the reversion of the said Messuage and Close after the death of Iohn Gate and thereby Ed. the 6. became sofâ—ed of them in like manner and from Ed. the 6. they came to Quéen Mary Then Iohn Gate dyes and after his death Quéen Mary enters upon the said manour and Messuage whereof the said Close was a parcell and afterwards by her Letters Patents under her broad Seal doth grant the Manour and Messuage and Premises unto Susan Tong and her heirs for ever From Susan Tong by mean conveyance the said Manour Messuage and Premises came to Humphry White and his heirs and afterterwards Humphrey White being seized thereof in Fée did by his indenture of lease demise the said Manour Messuage and Premises to Leigh for 60. years to begin from Mich. before the making of the indenture afterward Humphrey White grants away the reversion of the said Manour Messuage Premises to Sir John Branch afterwards Sir Iohn Branch grants this reversion to Vdall Vdall grants it to Bathurst and Bathurst grants it to Thomas Boothby the Ancestor of Thomas Boothby whose Baily doth here make the avowry Afterwards Robert Leigh who had the lease of the said Manour and Premises as aforesaid for 60 years deviseth the residue of this lease then unexpired by his last Will and Testament unto Robert Leigh his Son and dyes Robert Lee the son being possessed of the residue or remainder of this Term for 60. years by virtue of the said Will did at his court held for the said Manour of Chingford grant the said Messuage with the appurtenances and Lands thereunto belonging whereof the said Close was parcell unto Edmund Lee his brother to hold of the same Manour in Fée at the will of the Lord by Copy of Court Roll of that Manour Edmund Lee was thereupon admitted accordingly Afterwards the said lease for 60. years made by Humphrey White unto Robert Leigh the Father expires Afterwards Thomas Boothby who had the reversion of the said Manour and Premises as abovesaid entred as in his reversion upon the said Manour and Premises and dyed seised thereof leaving issue Thomas Boothby his Son Thomas Boothby the Son enters into the said Manour and Premises and claims the said Messuage with the apurtenances with the lands thereunto belonging whereof the Close called Pipers down was parcell and was granted by Robert Leigh unto Edmund Leigh by Copy of Court Roll as aforesaid as parcell of the demaines of the said Manour of Chingford and doth deny it to be Copyhold and to the intent to try the title thereof did by the Avowant his Bailiff distrein the Cattel in the said Close as damage feasant in his soil and Freehold This Case was argued first by Arthur Harris of Lincolnes Inn who argued for the Plaintiff viz. he that brought the replevin and in his argument he made the generall question in the Case to be whether the close called Pipers Down in which the distress was taken were at the time of the distress taken demiseable by Copy of Court Roll or whether the Custom was not destroyed and he held it was demiseable and that the custom was not destroyed and hereupon he made four questions 1. Whether the grant of the new house to Sr. Iohn Gate per nomen officii of keeper thereof were a good grant 2ly Whether the King not being enformed at the time of the grant that the house was Copyhold tenure he was not deceived in his grant 3ly Whether by this grant the Custom was not destroyed 4ly Whether the Kings Patentee hath not the same privilege to grant this house c. again by Copy of Court Roll after the death of Sr. Iohn Gate And as to the 1. of these 4. questions he cited 8 E. 4. by Chock and 21 E. 4.79 and Mich 5 Car. Banc. Reg. Monsons case and Pasc 14 Car. Banc. Reg. Messand and Butterfields Case and 5 E. 4. f. 8. and Dyer 269. Savages Case To the 2d question he held that the King was not here enformed of his right and consequently he was deceived and therefore ought not to be prejudiced by his grant which he should be if he had not liberty to demise this house again by Copy of Court Roll after the death of Sr. Iohn Gate and he said that there are two rights in the King 1. At the Common Law and 2ly a customary right and of this Customary right or his jus concedendi he was not enformed and he cited these books 3 H. 7.10 rep 49.8 H. 625 Br. Ayd 45 4. H. 6.1 2 R. 3. Hunsons Case and he said that the book of 5 H. 7. f. 1. which is objected is not to purpose for the protestation is not well taken 19 H. 6. a protestation is to supply a matter which is not so here 41 E. 3. Fitzh protest 9.22 H. 6.37 Br. protestation 6. Plowd Coment Gresbrooks and Foxes Case and 20 Eliz. Burrell and Holcrofts Case 2ly The King is not enformed here in his grant in matter in Law as he ought to be and therefore his grant shall not turn to his prejudice 1 rep 52.18 H. 8. Lovels Case Pasc 2 Eliz. Sr. Thomas Mores Case 1. rep â—3 16 Jac. Needlers case and whereas it is said that the words ex certa scientia in the patent do declare that the King was enformed I answer that those words do intend no more but that the King was enformed of matters of fact and not of matters in Law and the Kings grant shall only be taken secundum intentionem and whereas it may be objected that by the granting of the Estate for life unto Sr. Iohn Gate the custom is destroyed I answer that this being in the Case of the King it is an extraordinary Case and not
the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
upon the Case and didst kill thy first wife The Error assigned was that it doth not appear in the Declaration that the Plaintif was maried before But the Court affirmed the judgement and said the Defendant hath confessed it by joyning issue non culp upon the words VVood against Topham Trin. 1650. Banc. sup THis case being an Action upon the Case quare filium suum cepit et abduxit Error to reverse a judgement in an Action on the Case et maritavit was again moved and the exception insisted upon was that the Plaintif doth not say Cujus maritagium ad ipsum pertiner But Roll chief Iustice said that it could not be otherwise intended but that the mariage belongs to him and it doth not appear that his Son was maried before and the value of the mariage is not here material for the mariage of his Son belongs unto him as a parent Mariage in regard of his protection and advice Ierman differed and said that if he were maried before he was then Pater Familias and is out of the protection of his Father Protection But Nicholas and Ask Iustices agreed with Roll and Roll said the matter here is not the loss of the mariage for that is but to increase the damages but the Action lies only quare cepit et abduxit Adjourned to be argued the next Term. Antea et Postea Oreswick against Armery Trin. 1650. Banc. sup Mich. 1649. rot 354. OReswick brought a writ of Error against Armery to reverse a judgement given against him in Bristow Error to reverse a judgement in an Action of Debt Debt Custom in an action of debt upon a Concessit solvere according to the custom of the City but the Iudgement was affirmed for the Court said an action of debt will lie by a custom upon a Concessit solvere but not if it be brought against an Executor Custodes Libertat c. against Valconbridge Trin. 1650. Banc. sup THe Court was moved to quash an Endictment of Assault and Battery To quash an Endictment of Assault and Battery The Exception was that the Endictment was taken before the Iustices of Assize and Gaol delivery and Oyer and Terminer and so it doth not appear by vertue of what Commission it was taken Roll chief Iustice He ought to shew by virtue of what Commission particularly it was taken and therefore let it be quashed and a fine of 40 s. set upon the Clark of the Assizes for his negligence Fine Bowles against Clark Trin. 1650. Banc. sup IT was she wed for cause upon a rule of Court why a Prohibition should not be granted to the Prerogative Court Why a Prohibition should not be granted to the Prerogative That in the will which the Prerogative Court endeavoured to repeal there were lands given to the Executor The Court answered If the Prerogative have power to prove a will they may also repeal it by appeal but if lands be devised together with goods they have no power to repeal it as to the lands but if they should have no power to repeal it as to the goods it would be mischievous But they have no authority to make the devise good or ill as to the lands Prohibition And the Court was at first agreed to grant a Prohibition as to the lands only But afterwards the Court held that there could be no such division made of the will by Prohibition as to stand good in part and to be repealed for the rest and so would not grant the prohibition Nota. Keniston against Crouch Trin. 1650. Banc. sup THe Court was moved that upon a Judgement given in the Common Pleas For a rule to enter judgement in the Common Pleas denied since the Act that a writ of Error shall be no supersedeas a writ of Error was brought in this Court and the record removed but that depends undetermined and that the party had moved for execution in the Common Pleas but the Clarks refuse to make out execution without the rule of this Court Rule and therefore a rule was prayed to them to make out execution But the Court answered procéed as the Act directs we will make no rule But we conceive there is no writ of Error now depending and therefore you may take out execution of Course Q. Tamen Execution for it was doubted at the Bar. Denton against Harison Trin. 1650. Banc. sup DEnton brought an Action upon the Case against Harison in London For a Procedendo to London for speaking these words Thou art a Whore and my Husbands Whore and he doth maintain thee The Defendant removed the cause into this Court by a Habeas Corpus whereupon the Plaintif moved for a procedendo Roll chief Iustice was of opinion that a procedendo ought to be granted for if it should not the party hath no remedy to proceed and if they do proceed in London and the judgement he thereupon erronious the party grieved may bring a writ of Error in the Hustinges and reverse it Ierman Iustice said here is a wrong done and the remedy is given according to the custom of the City and it is a good custom Custom because it is for the preservation of the Peace of the City and it is the custom of the City to whip a Whoremonger and to Cart a Whore and this may be the ground or reason why an action lies in London for calling of a woman whore there thought it doe not lie in other places Trin. 1650. Banc. sup VPon an Issue joyned and a Tryal thereupon That Iudgement might not be entred a Verdict was found for the Plaintif and the Postea was delivered to the Clark of the judgements to enter the judgement but through the Clarks neglect execution was taken out the Iudgement being not entred upon this the Court was moved that the Iudgement might not be entred Iudgement because it should have béen entred before Execution issued forth and therefore it was suggested that now it was too late and prayed to supersede the Execution Supersedeas because there was no judgement to warrant it But Roll the Chief Iustice answered that this being but a neglect of the Clark judgement might be well enough entred though the Execution were issued forth and because the tryal betwéen the parties is right therefore let it be entred Cane against Pell Trin. 1650. Banc. sup CAne brought an Action of Debt upon the Statute of 2 Ed. 6. for substraction of tithes against Pell and hath a verdict against the Defendant Arrest of Iudgement in an action upon the Statute for tithes The Defendant moved in Arrest of Iudgement and took an Exception to the Plaintifs Declaration That it did not appear by it in what Parish the lands lie out of which the tithes grew due On the other side it was said 〈◊〉 appeared well enough by implication but if it did not it is not now material there being a
to be measured by ordinary rules of Law And 2ly Antient grants are to be construed as the Law was at that time when they were made 9. rep 27.6 rep 48. 〈◊〉 H. 7. 〈◊〉 14 E. 3. Fitzh Scire facias 23. and the King is not bound by a general custom as Common persons are 35 H. 6.29 by Prisot 22 Ed. 3. The King shall not pay a heriot upon the purchase of heriatable Lands and we shall find that many maximes of Law upon serious scanning of them are not so certain to be relyed on as they are commonly held to be 5. rep Knights Case Pasc 3 Eliz. B. R. Conisby and Risby Dyer 10 Eliz. and the patentee of the King shall have the same privilege that the King should have had if he had not granted the Letters patents 27 Eliz. Stubs and Rigfords case At another day Arthur Harris spake again to the point that the King had no legall intent to destroy the Copyhold Estate by his patent and therefore it should not be destroyed and cited Grotius de jure belli et pacis 343. and that no such intent can appear in the words of the patent and cited 7. rep Inglefields Case and 17 E. 3. f. 19. and Cooks Institutes 373. and 1. rep 46. and Plow 333. and as to the last point he argued that the Patentée of the King shall be in the same condition as to the reviving of the Copyhold Estate as the King should have been if he had not made the grant because that the King hath the Fee and he may grant it as he pleaseth Dyer 16 Eliz. 337.1 rep 31.10 Eliz. Dyer 266.24 Ed. 3. Fitz. Tit. guard 27. and no priority can be pleaded against the King nor against his Patentee Hill 30 Eliz. Stubs and Rightwayes Case an Action of Accompt against Executors doth lye only for the King It is true that prerogatives inseparable and annexed to the person of the King cannot be granted away by the King but prerogatives separable may be granted away 12 H. 4. Fitzh guard 81. The Grantee of the Grantee of the King shall have the prerogative of the King by reason of the thing granted by the King Brook praerog 17. 21 H. 7.2 Br. entre congeable 4â—â— The King may distrein for a rent seck but not his Grantee because it is a prerogative executory and not executed for in such case it is otherwayes and as to the objection to the cause of the demurrer set forth that the Concessit is not answered because it only sayes mentionat esse concessum I hold it well enough but if it should not be yet it is helped for both partyes do agree in the setting forth of the Letters Patents 34 Eliz. B. R. in Harâ— and Smiths case and the grant is confessed in our rejoynder and though the demurrer should not be good yet the Avowant cannot have Iudgement for he hath not entitled himself to the Action as appears by his grant for his grant is void and cannot take effect rep 46.8 rep 201.39 Eliz. in the Chequer Chamber Where 2. Manours are granted by the name of one of them the grant is not good And in our case Thomas Boothby had nothing in the land at the time of making of the deed of Covenant to stand seised to use as it appears by the Avowants own pleading and the postea cannot help it Dyer 111. Clarks Case Hill 15 Iac. entred Trin. 15 Iac. rot 29. Desmons case 20 H. 615. Hales on the other side argued for the Avowant and prayes a return of the Cattel distreyned first he put the Case at large And he said that the Plaintiff hath not well set forth the Kings grant in his bar and so it is all one as if he had not set it forth at all Plowd 563. and he hath disputed that which we have not alleged and the sur rejoynder is but argumentaive and not positive and nothing appears to the Court and he hath quite mistaken his course and way But admitting the case and the points to be as they are made viz. 1. Whether the new Office be well granted because the word Constituimus is omitted 2. Whether the grant for life be good 3. Whether the grant of the Copyhold for life be a suspension of the Copyhold estate or an extinguishment of it which is the great question in the Case For the 1 point I hold that here is a good grant of this new Office and that the word Constituimus is not necessary because that there are special fées also newly granted 2ly This is not an Office in gross consisting and resting upon it self but it is a relative Office or an imployment incident in the interest of the house granted and therefore the word Constituimus is not here necessary Dyer 200. 3ly If it be not a formal Office yet here is a good grant of an employment to which a recompence may be added although an Assize cannot be brought for it 3 Ass Trin. 6 Iac. Abercromies Case And here the protestation that the King was not informed that this was Copyhold land is unnecessarily alleged and therefore it is not of necessity it should be answered and if it be not well set forth it is not material For the 2 question whether the King was deceived in his grant he said that the King needed not to take notice of any former estates and that the Statute expresseth that it is not necessary to recite them 24 H. 8. 2â— To the 3 point the chief question whether the Copyhold estate be suspended or extinguished he held it was extinguished and cited Knights case Alton woods case and said that the rules of the Civil Law ought not to be applyed to the Common Law nor to be cited to perplex the proceedings thereof and were this in the case of a Common person without doubt the Copyhold estate would be destroyed 20 Eliz. by Popham and Fenn and the King here hath the Fee simple and there is no difference between the case of the King and of a Common person in this regard a thing which will not pass by the King without notice will not pass with notice and here is no prejudice to the King in not taking notice whether by the Patent the Custom to grant Copyhold estates be destroyed or not and here is a necessary consequence in Law that the custom is destroyed because the King that had the fee in the Manor hath suspended the Copyhold by his grant All the Arguments used on the other side are to destroy the Kings grant and the cases put do all differ from our case and do stand upon their own bottoms Nor shall the King be intended to be mis-conusant of his particular grant such as this is although he may be in a general grant lib. Ass 21. pl. 19. Pasch 12 Car. C. B. Glover and Edgars case and it would be a great mischief if the Copyhold estate should be revived As to the last point whether the
Patentee shall be in the same condition as the King was he said that it is not material whether he be or no as to the Case in question and rested upon the 3 question If the King hath free warren in land and grants the land and mentions not the warren yet the warren passeth by the grant And here out Avowry stands pro confesso because the Plaintif hath made no title A grant of a Manor per nomen maneriorum is a good grant of the Manor and here is a good grant and if not yet it is helped by the Statute of 3 4 Phil. Mar. C. 1. 1 H. 7. f. 28 and the Postea here refers not to the grant of the Copy and here is no ouster alleged and if there be there is do disseisin but it passeth an estate for will between the parties Roll chief Iustice It would be dangerous to make the Patent void because the King took no notice of the Copyhold estate and this point is not fit to be argued A thing not materially alleged in pleading is not necessarily to be answered and it is not necessary to create such an Office as this is for it is but an employment The great question is whether after the death of Sr. Iohn Gate the Copyhold estate can be revived or not in the case of the King It may be dangerous whether it be one way or the other As to the pleading we will not make it ill if it may be good Argue the great point again for it is a difficult point and of great consequence Ierman Iustice to the same effect and enclined that the King had no intent to destroy the Copyhold and he held that the Office was well granted because it was but an imployment Nicholas Iustice inclined that the Copyhold was destroyed At another day Wadham Windham argued for the Plaintif and first he put the case at large and then said that 1. It appears by the replication that the Avowant hath no title 2. He confesseth that the Plaintif hath a Title Queen Mary seised of the Manor of Chingford Comitis whereof Pipers Down is parcel grants it per nomen duorum illorum maneriorum and it is not averred that she had two Manors First it is considerable whether the Patent be good by the Common Law 2ly Whether if not yet it be made good by the Statute of H. 8. and he held 1. That it is not good at the Common Law because it is incertain and wants sufficient words and here is an apparent falsity for he hath two Manors and he grants but one and if the King have two Manors and grant them per nomen Manerii this is not a good grant As tithes belonging to a Rectory cannot pass by the name of a portion of tithes neither do all the Statutes of Confirmation of Patents confirm less or greater values granted than are comprised in the Letters Patents 41 Eliz. Pasons case in the Exchequer A presentation to a Rectory where it ought to be ad Medietatem Rectoriae is not a good presentation 2. rep Dodingtons Case Dyer â—31 An ill grant is not helped by the Statute because it is not named 2ly A false suggestion is not helped by the Statute of 34 H. 8. 3 Car. Sir Hatton Farmers case and in our case here is a mistake of a thing and not of the name for it is a Manor for Manors and so there is no true meaning and therefore it cannot be helped by the Statute Pasch 1 Iac. rot 216. C. B. Dawson against Pickering The Queen was seised of two Manors viz. of Rushworth and of Dale and granted the Manor of Rushworth habendum the Manor of Rushworth with the Manor of Dale and it was held an ill grant at the Common Law and not helped by the Statute But it is objected that this Manor may be known by the name of two Manors and so in our case although the King was seised of one Manor and granted this Manor habendum per nomen duorum Maneriorum this is good Mich. 22 H. 6. pl. 16. f. 13. To this the answer is that it cannot be pleaded per nomen without an averment that there are two Manors 2 Ed. 4. f 28. the last case There is a difference between a feofment and a release a feofment may be pleaded per nomen without an averment but a release cannot be so pleaded for in a feofment the livery operates to pass the land 22 H. 6. Hill f. 39. pl. 9.13 and Dyer the Serjeants Case where there is certainty there needs no averment but it is not so in our Case 1 H. 7. f. 28. and it is a forein intendment to suppose that one Manor of Chingford Comitis shall be known by the name of the two Manors of Chingford Comitis and we need not plead by a non concessit because the Avowant hath made no title and so he can have no return 1 H. 7. f. 28. 6 H 7. f. 6. and here is no certainty added to make it certain by the words illorum quod nuper perquisivimus de c. To the second point The Avowant hath confessed the Plaintifs title for he hath confessed that K. H. the 8th hath made it a Copyhold and if the Copy be good our title is good As to the question whether when a Copyhold comes to the King and he leaseth it this doth not so destroy the Copyhold that when the lease is out it may not be Copyhold again I hold that if a Common person lease a Copyhold the Copyhold is destroyed but it is not so where the King leaseth it as it is in our case which ought not to be measured by the Common rule of Law for the Law of the Crown over-rules the Common Law and the Law of Custom 22 E. 3. The King is not bound by Custom as a common person is 35 H. 6. The King having Gavelkind lands may destroy the Custom which runs with such lands pro tempore only and the Kings grant shall not enure to a secondary operation as Knights case is and here is no prejudice to any person that the Copyhold estate should be revived here the consequence may be severed and it is not necessary and therefore the lease of the Copyhold not naming it Copyhold is good As to the Objection made that it is no benefit to the King to make it Copy-hold again the answer is That it is a prejudice to take away a mans privilege and liberty if there were no other inconvenience but here is more for there may be prejudice by losing the Common c. And the rule that a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind common persons and the Statute makes not the grant good as to the reversion The Copyhold is demised and yet shall be demisable hereafter and so it may be pleaded for pleading follows the Law A Custom interrupted in the right is gone for ever
but if it be interrupted but in part it is not so as it is in the case cited where the King hath Gavelkind lands Com. Plowd 114. and so prays judgement for the Plaintif Adjourned Latch at another day argued for the Avowant and said that the Plaintif in his rejoynder hath made no title unto Susan Tong from whom he claims It is objected that by the grant of the Manor of Chingford Comitis per nomen duorum illorum maneriorum c. that Tong cannot be intituled It is answered that the other side hath confessed that Tong hath a title for they derive from her also and the contrary doth not appear to the Court and it being agreed the Court will not make a doubt of it He made 3 Questions 1. Whether the Manor of Chingford Comitis passeth per nomen duorum illorum maneriorum de c. 2ly Whether if the grant be ill it be aided by Statute 3ly Whether it be helped by the Averment For the 1. he held that here is a good grant without any averment or aid of the Statute for if the King grants two Manors one shall pass and e converso it shall not be so in the Case of the King but it is good in the case of a Common person with an Averment The grant of the Manor of Saperton cum Rippen is an ill grant for the incertainty of it but here is no such incertainty here is no non nosmer of the thing for the word nomina requires not a proper name but it is all one as if it had been expressed by words comprehending it and the word Manors doth comprehend it If the King grant his two Acres of Land lying in a Common field although but one Acre is to be found yet the grant is good and it is not like to the grant of a Manor with the Advowson where the King hath but a moyety of the Advowson or a moyety of the Manor for the Moyety is not actual in the whole but one is actually in two and so it is well named here 2ly Whether it be good without an averment that the land was in the Lord Darcy and he held it was If the words were general in the grant all of them ought to be true otherwise nothing will passe by the grant as Dodingtons case is but here is a proper name to express it and therefore the grant is not destroyed although the latter description do not agree to it 10. Rep. Harpers Case 2 H. 4. f. 2. If the King grant all the lands in the Patent annexed bearing date 10 of Iune though the Patent bear date the 10 of Iuly yet is the grant good for veritas nominis tollit errorem demonstrationis and if the grant should not be good at the Common Law yet it is ayded by the Statute of 3. 4 Phil. Mar. and here is a full and a strong averment in the pleading for it is Manerium praedictum and not Manerium generally and here is not only a possibility but also a facility for it to pass and it may be called Manor or Manors and in a feofment a thing may pass per nomen because that the livery passeth it where one pleads per nomen he is to make the Plea agree with the Record or specialty otherwise per nomen shall not be pleaded and Newtons opinion against this is but a single opinion 33 H. 8. Br. Averment 42. The word praedict makes an averment in the name of the Feoffor â—4 H. 4.30.22 H. 6.40 Barton and Escott here is also a full averment of the thing granted this is in grants 7 E. 4.24.33 H. 6. f. 22 26 Ass 2.24 Ass 6. so in Letters Patents Dyer 86. the Serjeants case and if this be authority it is in the very point Dyer 207. praedict per nomina is a good averment Pasch 7. Iac. Rot. 430. B. reg Stonehouse and Reeds case where there was not so much as a per nomina but only decimas praedict and yet adjudged to be a good intitling by the word praedict because it was held a good averment although it was not led on by a per nomina and there admitted to be clear if it had been with a per nomina as the Case here is so Tong is well intitled 2ly The Plaintifs title is well avoided and we have well destroyed his Copy without doubt if a Common person had granted the Copyhold for life the Copy-hold had been thereby extinguished and our case is not a prerogative case for the King is bound by the Custom of the Manor and the Custom is here destroyed and the prerogative cannot create the Custom anew and it is against the Kings Prerogative to have things drawn out of the King without matter of Record and it is prejudice to the King to have the Custom revived for the lands are now made free and shall never return again to the Vassalage The Kings Prerogative exalts him above a Common person but this custom makes him equal to a common person 2ly The Custom here cannot be supported but here is an absolute extinguishment of the Copyhold so that it cannot be regranted The law will confirm things necessary to the grant of the King in some cases where it is prejudicial to the King 16 H. 7. f. 8. Nicholas case Plowd 489. The king seised of a donative makes it presentative if he do but once present unto it so if he turn an Annuity into a rent charge by taking a distress And the nature of this Custom here ought not to be examined with other Customs for it is more strict than in other cases for if it be once destroyed it is always destroyed and cannot be suspended and it is not for the Kings dis-advantage to have the Copyhold destroyed but it is for his advantage and conveniency and so he prays judgement for the Avowant Roll chief Iustice All will come and rest upon the last point for all the other things are admitted The grant is good by the per nomen and it is only nominal and doth not imply that there are two Manors and it may stand well enough with reason that it may be known per nomen But the last point is considerable he enclined to Latch Nicholas Iustice to the same effect and that the praedict is a good averment The last point is considerable but prima facie here the custom is not destroyed Ask Iustice to the same effect and that it appears that the King intended to grant but one Manor Roll We will take time till the next term to speak to the last point which is only doubtfull and to deliver our opinions Ierman Iustice the pleading of the party per nomen helps not the Patent if it be not good in it self The next Term Roll chief Iustice for himself and the rest of the Iudges who he said concurr'd in opinion with him delivered the opinion of the Court to this effect 1. That they were agreed that
the grant of the Office of the Custody of the house is a good lease for life notwithstanding it was Copyhold and it is not necessary to recite in the grant that it is Copyhold 2. That after the estate for life is determined the King may grant the house and land again by Copy of Court Roll because the Kings grants shall be taken favourably and not extended to two intents where there is no necessity for it as there is not here and we are not here to intend a collateral intent and so the Copyhold is not destroyed for the Law takes care to preserve the inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copyhold viz. to have Common c. and his election is also destroyed if he may not have it Copyhold So Iudgement was given for the Plaintif nisi Pawsey and Lowdall Pasc 1651. Banc. sup Pasc 1650. rot 275. IN this Case formerly argued Roll chief Iustice Iudgement reversed upon a special Verdict touching a Devise of Copyhold lands and Nicholas and Ask Iustices agreed that the devise of the Copyhold here is a devise to the Heirs of the Father and so a Fee-simple and that the party comes not in as a purchaser and for this cause the judgement was reversed nisi As to the other point whether the surrender of a Copyhold by a Tenant for life be good in this case the Court delivered no opinion Antea Trundall and Trowell Pasch 1651. Banc. sup Hill 1650. rot 670. IN this Case it was held that Tenant in antient Demesn cannot after imparlance plead antient Demesn for he hath made a full defence Where antient Demesne cannot be pleaded for he says Defendit vim et injuriam quando c. which implyes all the rest Mich. 22 Car. Banc. Reg. Yet it was ruled to be again spoken to Peck against Ingram Pasch 1651. Banc. sup THis Case formerly spoken in was moved again and Latch held Whether a good notice that the words obtulit se in maritagium conjungi was a good notice upon the whole matter and therefore that the Action did well lye Roll chief Iustice answered this is a personal thing and ought to be offered to the party himself otherwise it is no notice and that doth not appear here and if there be no notice implyed then the Action lies not and Holmes and Twists case is that there ought to be notice if the thing be to be done by the party himself otherwise if it be to be done by a stranger so is it here but the question only is if notice be implyed here or not Ierman Iustice said there is no tender of mariage if the other party be not there The rule was for the Plaintif to take his Iudgement Rooke against Smith Pasch 1651. Banc. sup ROoke brought an Action upon the case against Smith for speaking these words of him Thou art a poor fellow Arrest of Iudgement in an Action upon the Case for words and art not able to pay 2s in the pound and art not able to pay thy debts Vpon an Issue joyned and a Verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable for 1. the Plaintif is not by them charged with the crime of being a Bankrupt and so there is no particular losse to him 2ly It is not showed that the Plaintiff got his living by buying and selling or that he is indebted and 11. Iac. Brook and Clarks case was cited Twisden on the other side answered that the Plaintiffs credit was impaired by the words and by his credit his livelyhood is in part mainteyned And he cited Viccary and Barns case Adjourned to the next Term. Wild afterwards moved again for Iudgement because the words being spoken of a tradesman he conceived them to be actionable Maynard on the other side held them not actionable because there is no particular damage alleged to grow to the Plaintif by speaking of them and because there is no crime objected against the Plaintiff for poverty is no crime but a man may be poor and honest at the same time and he cited two cases to be adjudged that a particular damage ought to be alleged And said that these Actions are not favoured in Law and therefore if the words be not cleerly Actionable it was not reason to make a forced construction of them to make them so Next the Plaintiff hath not averred that he was able to pay all his debts for all the things bought but only of a debt contracted by the buying of the Oyl mentioned Twisden denyed the cases put by Maynard of the particular damage and held the words actionable Roll chief Iustice said a man may be a Bankrupt and yet be honest for he may become so by accident Averment and not of purpose to deceive his creditors But here is no need for the Plaintiff to shew he had a particular losse by the words for it is enough that he is generally scandalised by them neither is it necessary for him to averr that he was able to pay all his debts as Maynard hath alleged Therefore let the Plaintiff have his Iudgement nisi Antea Owen against Jevon Trin. 1651. Banc. sup Pasc 1651. rot 211. OWen brought an Action of the case against Ievon for speaking these words of her Arrest â—f judgement in Action for words viz. This is the whore that my man Cowell begat a bastard on and spent all my mony upon and the quean hath been too long in Town to my ease Vpon an issue joyned and a verdict for the Plaintiff Twisden for the Defendant in arrest of Iudgment urged that the words are not actionable because there is no special losse or damage alleaged by the Plaintiff hapning to her by reason of the words said that in one Lighfoot and Pigots case it had béen ruled that an Action lies not for saying a woman had a Bastard and he cited also Winter and Barnards case Trin. 1650. in this Court. Vpon these reasons Iudgment was stayed till the other side should move Iay against Iay. Trin. 1651. Banc. sup Trin. 1650. rot 1350. THis case formerly put and spoken to Argument in a special verdict touching the consideration of the words of a will was again spoken unto by Latch wherein he made this question viz. whether the limitation to I. and his Heirs were good or not and he held it was not good for he said that such limitation in case of a freehold is void He confessed that in the case of Pell and Brown 17 Iac. rot 44. the contrary was adjudged but that there did appear such apparent inconvenience in it that upon it the Court was afterwards divided and 21 Iac. in the Serjeants case it was made a flat quaere and ever since it hath been disputable whether a contingent devise be good or not and in Iacob and Tellings case it is not
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
was a grant but of part of the reversion of the land which case comes not within the Statute for the Grantor cannot have advantage by the Statute where he grants but part of the reversion and it is not literally without the Statute and therefore it is within the equity of it otherwise it would be mischievous to the Grantor and here is no disadvantage to the Lessée by the transferring of the condition for the same Statute that gives benefit of the condition gives benefit of the Covenants and the Grantée of a reversion shall have benefit of a Covenant to be transferred although they are entire in words at the beginning and hath one common conclusion Wild of Councel on the other side held the condition to be entire according to Rawlins case and goes to payment of the rent and the fine and reparations also and the reversion being assigned with which the rent passeth the condition is gone also to the fine Dyer 309. and this is a stronger case than that to destroy the entire condition by grant of the reversion 17 El. Brightmans case C. B. The fine here is a sum collateral and is not incident to the reversion and so the condition is collateral and cannot be apportioned 5. rep Spencers case 34.8 Br. Cov. 93. 2ly The Statute of 32 H. 8. cannot help it for the purview of the Statute explains the large preamble of the Statute and shews the intent of the makers of it to be for forfeitures incident to lands and reversions and a covenant is here as general as a condition and the Statute extends not to a collateral covenant and therefore not to a condition collateral 35 H. 6. f. 56. Condition and the cases put on the other side come not to our case And as for the mischief which may ensue by this it matters not for it might have been prevented by providence of the partyes and the inconveniences which may happen to them must not alter the Law Roll chief Iustice said if he release the fine the condition will not stand as to the rest otherwise if the fine expire by effluxion of time or if he release the reparations the condition is gone as to the rest for the condition here is entire and goes in the destruction of the Estate and it is the Act of the Lessor himself to assign over the reversion and by that all is passed away that is incident to it and by consequence the condition Ierman Iustice demanded What if the Lessor shall pay all the fine presently Roll chief Iustice answered it may be it will destroy the condition Nicholas Iustice said the condition is odious in Law because it goes in destruction of the Estate Adjourned to be argued again because held a case of consequence At another day the case was moved again and argued by Latch for the Plaintiff who made the question to be whether the condition as it is penned may be severed or no and said that as it respects the rent it is not a condition in grosse but as it respects the fine it is a condition in grosse and a condition which is entire in words may by acts of Law receive distributions Where the penalty of a condition is intire there the condition cannot be apportioned but the condition is not so here and therefore may be apportioned Dyer 30â— Knights case â— H. 7.6 Perkins 162. 7. H. 7 Kelm 60. Dyer 334. Popham in Dumports case is contrary to Dyer Cook Lit. 203. 2ly It is questionable whether the Statute may help in our case and he said it doth for the name of rent is not altered nor the condition attending upon it nor any thing done to alter the execution of the condition 3ly By the assignment there is no injury done to the Lessée for by it here is a freeing of a thing to be done and the Statute is a favourable Statute and to be extended with indifferency Finch on the other side argued much to the same effect as he did formerly Roll chief Iustice said it is not necessary for the party to express how the condition relates to all viz. the re-entry for non payment of the rent and of the fine and for not repairing and he said a man cannot by his own Act divide a condition for we must keep the rule of law which is not to divide a condition which goes in destruction of an Estate and this case is not within the Statute of 32 H. 8. All the rest of the Iudges concurred with Roll and so the rule was judicium pro defendente nisi Brown against Nelson Hill 1651. Banc. sup Trin. Hill 1650 rot 897. AN Action of Debt upon the Statute 7 Ed. 6. for selling of wine without licence Whether a Iudgement given against one of two Defendants were good was brought against 2. Defendants they both plead nil debâ—t whereupon issue being joyned a special verdict was found viz. that as to one nil debet and that as to the other he had drawn a pint of wine without licence and upon this Iudgement was given against him that was found culpable It was questioned whether this were a good judgment But Roll chief Iustice concluded it was à good Iudgement and cited many cases adjudged in point to prove it and one in particular in an action upon the Statute for dying with Logwood and he took a difference between an action grounded upon a joynt contract or a joynt trespasse and an Action brought joyntly upon a Statute against two or for a tort done by two as this is upon the Statute In the first case Iudgement cannot be given against one of the contractors in the other it may Weld against Rumney Hill 1651 Banc. sup Hill 1650. rot 1193. A Writ of error was brought to reverse a Iudgement given in an Action upon the case against two Executors Error to reverse a judgment in an action on the case and the error assigned was a matter in fact viz. that one of the Defendants was within age at the time of the Action brought and did appear and plead by his Attorney whereas he ought to have done it by his guardian Twisden for the Defendant in the writ of Error said that it is not all one to appear within age in his own right and in anothers right for where he appears in his own right he ought to appear by his guardian but where he appears in auter droit as he doth here being an Executor he may appear by Attorney and cited Draytons case 9 Car. Appearance But Roll chief Iustice denyed the difference and said it may be that the Executor may be charged of his proper goods as in case he have wasted the Testators goods and then it is not reason but he should plead by his guardian and he is not within the Statute of 21 Iac. for that Statute was made for the Plaintiff and this is in case of a Defendant therefore he should have appeared by
assigned in the Declaration was not well assigned for it recited another promise than upon which the Plaintif had declared for he declares of a promise made to give 300 l. in mariage to the Plaintif with his Sister E. and he assigns the breach in not paying the 300 l. unto the Plaintif so that the breach doth not answer the promise for if the money be paid to the wife which for ought appears may be the promise is not broken though she be maryed But Hale 〈◊〉 other side said that it is all one as it is alleged and that it is equâ—â—â—â— and reciprocal and here is a refusal to pay the money assigned for a breach and this is a good breach Roll chief Iustice I suppose it is all one as if he had expressed the very words of the promise for the Husband is to give the acquittance for the money Acquittance and the moneys are to be paid unto the Husband and the Verdict finds that they are not paid And if moneys be due to a Feme upon a Contract dum sola suit and after and before the payment thereof she marry the moneys are to be paid to the Husband and not the wife Payment and the moneys here are intended to be paid for a mariage portion which doth properly belong to the husband and they were not to be paid unto her before the mariage and it is all one in this Case as if the Plaintif had said that the Defendant had not paid the moneys to the Husband with his Wife in mariage Curia ad idem The Rule thereupon was that the Plaintif should take his judgement nisi Hicks and Joyce Mich. 1653. Banc. sup AN Action of the Case was brought for these words Arrest of judgement in an Action for words She meaning the Defendant is a whore and I will prove it and her plying place is in Cheapside and she gets 40 s. a night by playing the whore It was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and very general words and may receive divers constructions and at the first moving the judgement was stayed but the matter being moved again at another day Roll chief Iustice said that these words import more than the bare calling of a woman whore by reason of other particular circumstances set forth to aggravate the matter and therefore let the Plaintif take her Iudgement Townesend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. AN Action upon the Case was brought by a Churchwarden of a Parish Arrest of judgement in an action for words for these words spoken of him Thou dost make Lowns i. e. taxes or assessments thy self and makest 5 quarters in the year and dost cheat and cozen the Parish It was moved in Arrest of Iudgement that the words are not actionable because they are spoken of a Churchwarden which the Common Law takes not notice of And 2ly In that it doth not appear they were spoken of him in relation to his being a Churchwarden But it was answered That a Churchwarden is an Officer of Trust and taken notice of by the Common Law and so was it adiudged in Stroade and Homes his Case in this Court and the words must be intended to be spoken of him in the relation to his Office for that is implyed by his making of Lowns and his couzening the Parish The rule was for the Plaintif to have his judgement Mich. 1653. Banc. sup AN Endictment of one endicted for refusing to serve in the Office of a Headborough was quashed Endictment quashed Addition because it did not shew that he was chosen to the 〈◊〉 and because the party endicted wanted an addition Mich. 1653. Banc. sup THe Court was moved to discharge one Cullins that was arrested as he was attending the Court to give testimony as a Witness in a Cause To discharge one arrested attending th' Court as a Witness Supersedeas Attachment and for an attachment against the parties that did arrest him German Iustice absente Roll chief Iustice Take a Supersedeas and let the parties shew cause why an Attachment shall not be granted against them that arrested him Hanslop and Johnson Mich. 1953. Banc. sup THe Court was moved to change the venue in an Ejectione firmae laid in London because the Lands in Question did concern the Poor of London To change the Veâ—ue in an Ejectione firmae and therefore it was supposed there could not be an indifferent Tryal in London for by consequence in that it concerns the Poor it concerns the whole City But Roll chief Iustice answered the Action is local Action local Venue and it cannot be removed except you can draw it from thence by your Plea Boyle and Scarborough Mich. 1653. Banc. sup Hill 1652. rot 226. AN Action of Debt was brought by Boyle against Scarborough Error in reverse a judgement in Debt upon a Promise wherein the Plaintiff did declare that the Defendant in consideration that the Plaintiff would forbear to sue forth a ne exeat regnum against the Defendants Son who did owe unto the Plaintiff five hundred pound did assume and promise unto the Plaintiff a certain sum of mony expressed in the Declaration upon non assumpsit pleaded and a verdict and a judgement given for the Plaintiff the Defendant brought a Writ of Error and it was assigned for Error That there appears no consideration to ground the promise upon so no ground of Action for he doth not shew that he had done any thing in prosecuting the Writ of ne exeat regnum and Rolyer and Langdales Case 1650. in this Court was cited and Hob. 216. Bedwell and Cottons case and there is no such Writ in the Register as a ne exeat regnum and therefore there could be no forbearance to sue out such a Writ but there is a Writ to give security not to go out of the Realm to the publique prejudice of the King and his people and here is no such matter expressed but only that his Son owed him 500 l. Nat. Brev. 85. was agreed and it was farther objected by Wild who argued against the Iudgement that though the consideration should be good yet the replication is not good and sufficient to tye the second Writ to the first for it is not said that the second Writ is pro una eadem causa and so it is incertain Br. Trespass 85. 9 H. 6 and there may be several promises made in one day and if the replication is good yet the rejoynder is not good 19 H. 8.43 for he only admits that he being a Knight is the same person which was sued by the name of Esquire Hob. 171. Stukelyes Case And here is a judgement by a Nihil dicit and no warrant of Attorny for it is Latin and so it is nul it being since the late Act made for the proceedings in Law to be in English Latch
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
Owner may devise and the Custom is that every Owner in fee-simple may devise and the Custom shall go to Land and holds to reversions as well as to lands in possession At another day it was argued that the devise was not good for the word Owners cannot extend to all sorts of Owners for it extends not to an Infant Owner of such Houses for he cannot devise therefore the words must receive a limited construction and therefore I conceive the word Owner extends only to an absolute Tenant in fee-simple and not to a reversioner in fee for a Custom must as hath been said be taken strictly 12 E. 4. f. 3.21 E. 4. f. 24. 2ly In true construction this Owner in fee in remainder shall not be said Owner but the Tenant in tayl is Owner and so here is not Owner ex vi termini 3ly Here is but a possibility of fee-simple in him which is not grantable or devisable 2 Ed. 4.1 and the Statute of Westm 2d helps not to the Custom for that Statute is within memory of man 26 H. 8. f. 4.22 Ass Pl. 78. And upon the very finding of the verdict it cannot be good for by the Verdict no title is found for the Defendant Latch on the other side held that here is a good devise warranted by the Custom for here is an Estate within the very letter of the Custom for he is true Owner of the House in fee-simple although it be not in present possession for he hath fee-simple in it and hath it to his own benefit in such an Estate as it is and the word Owner is a general word and comprehendeth all manner of Ownerships 2ly It is within the reason of the Custom for it intends the same benefit to Owners in reversion as it doth to Owners in possession and is indifferent unto all Estates And although a Custom shall be taken strictly yet it shall also be taken reasonably as having respect to the benefit of the party and there can be no reason alleged to be against this devise 26 H. 8.4 A remainder in fee shall go according to the Custom whether by the Custom Lands in fee shall go the Custom shall go to all things issuing out of the Land and so to all Estates in the Land Dyer 148. and here is more than a possibility devised 4 5 Phil. Mar. Benloes It is ruled that a fee-simple expectant shall go to the youngest Son by the Custom where the Custom was that the youngest Son should have the Lands of which his Ancestor dyed seised and as to the Verdict here is a good title found for the Defendant Roll chief Iustice The verdict is imperfect for the Ejectment is against Baron and Feme and the Feme is found Ejector by the verdict and nothing is found concerning the Baron Venire de novo therefore you must have a Venire de novo if you will not agree to amend the Verdict according to the notes if the notes will warrant it Afterwards a Venire de novo was awarded by consent Pendarvis and Saint Aubin Hill 1654. Banc. sup Trin. 1653. rot 723. IN an Action of Accompt the Defendant pleads ne unques receptor Plea before Auditors upon this an Issue was joyned and an imperfect verdict found and thereupon a Venire de novo was awarded and the Iury found for the Plaintiff and the Defendant adjudged to accompt before Auditors The Defendant pleads before the Anditors that he had delivered over part of the monies To this the Plaintiff demurs and shews for canse that this Plea is contrary to the Verdict for that is that he should accompt for all and here he would accompt but for part only Windham for the Plaintiff argued that this cannot be a good plea before Auditors in discharge of the accompt but it goes in bar of the accompt Dyer 196. 41 E. 3. f. 31.22 H. 6.25 and in Boynton and Cheeks Case lately in this Court such a Plea was adjudged not good And it would be michievous if it should be otherwise in reserving such matter to be tryed again Twisden on the other side said it is a good plea before Auditors to say that he received the monies to deliver over and there are four opinions in the Books how this matter should be pleaded â—o E. 3. Br. Acc. 8â— hold â— that this Plea is pleadable before Auditors and this plea is in discharge of the Accompt and therefore pleadable before Auditors 12 H. 4.18 and in Baynton and Cheeks Case cited the judgement was not given upon this point Roll thief Iustice The Books generally are that this plea is in bar of the Accompt Plea Bar. but here your plea of delivery over hath made it a plea in bar and it would be mischievous to plead it now for this would cause one and the same issue to be twice tryed and then there may be contrary Verdicts which would be inconvenient Therefore let judgement be for the Plaintiff Stavely and Ulithorp Hill 1653. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes and a Verdict was given for the Plaintiff Arrest of Iudgement in an action for not setting forth of Tâ—hs It was moved in arrest of judgement that the Statute was mis-recited because it was not said the Parliament in which it was made was held by prorogation as in truth it was But Latch answered that it is not mis-recited for it is true that the Parliament was held upon the 9th of November Recital as we have alleged though we have not expressed it to be held by prorogation and we conceive it is not necessary to express it to be so held for the Presidents are contrary as in Cooks Entry tit Prohibition Roll chief Iustice The Parliament is not said to be begun and held but only to be held and therefore it is well enough Iudgement was given for the Plantiff nisi Postea Dorman and Snag Hill 1653. Banc. sup AN Action upon the Case was brought upon two promises Arrest of judgement in an Action upon two promises viz. to pay so much mony upon a certain day and 2ly to save the Plaintiff harmless c. Vpon issue joyned and a verdict found for the Plaintiff it was moved in arrest of judgement that the Plaintiff did not shew how the Defendant hath not saved the Plaintiff harmless but only sayes generally that he did not save him harmless and so he may bring another Action for the same thing The Court was then of opinion that it was not good to say generally that the Defendant did not save him harmless but he ought to shew in what particular as if I assume and promise to one to give him all the mony in my Purse I must shew how much mony was in it and aver that I gave it him At another day Sergeant Clark moved for judgement whom Latch seconded and said here is a good breach
pleading p. 37 327 328 481 C. 1. Where words shall be adjudged void 45 C. 1. 102 C. 2. 334 C. 1. 10 Writ VVhere a writ shall be said to be well directed and where not 42 43 237. To whom writs are to be directed to whom not 461. VVhere one may plead in abatement of a writ and where not p. 50 C. 1. p. 84 99 201 202 260 C. 1. 538 404 C. 1. 421 C. 2. VVhere a writ is to be abated and where but abateable 421 C. 2. 441. For what causes a writ shall be abated and for what not 92 138 C. 1. 190 C. 1. 19 C. 1. 203 C. 1. 204 218 C. 1. 221 223 237 260 265 C. 1. 303 C. 1. 407 421 C. 2. Where a writ of Ne exeat regnum lyes and where not 440 c. Where a writ of enquity of dammages lies and where not 127 C. 1. 288 vid. Enquiry Where the antient forms of writs may be altred and where nor 218 C. 1. When an Original writ ought to be filed 292 293. Where one may have a new Original writ and where not 404 C. 2. To the Reader BE pleased to take notice that notwithstanding my more than ordinary care in Correcting the Presse these ensuing Errataes have happened in the Prenting but many of them are but literal and alter not the sense and for the others I hope you will pardon them and correct them by the Errata as you meet with them ERRATA PAge 20. l. 5. for Barker read Barlye p. 76. r. for Bendir r. Denoir p. 204 205. r. 104 105. p. 208. r. Paget for Pagort p. 8. l. 3. r. facias for facis p. 8. l. last but one and last r. reversed for affirmed p. 25. l. 8. r. against for again p. 26. l. 11. r. for to Sub-deputy to the Sub-deputy p. 27. l. 31. r. for at Bar at the Bar. p. 48. l. 15. r. against for again p. 75. l. 25. r. him for hinn p. 106. C. 2. in the margent put out Amercement p. 166. r. Denoyr for Bendir p. 172. l. 24. r. bail for bailed p. 183. l. 27. r. certifie for rectifie p. 96. l. 11. r. Iennings for Gennings p. 213. C. 3. r. Barmestone for Barneston p. 226. l. 43. r. and not to for and to p. 228. C. 4. in the margent r. to have Execution insteed of to have Iudgement p. 243. l. 25. r. but that the for but that p. 249. l. c. 3. in the title r. Pawsye for Bawsye p. 258. r. Iay and Iay for Gay and Gay p. 264. l. 13. r. implyed for imployed p. 265. 1. c. in the title r. Skedlock for Shedlock p. 270. l. 15 16. r. she for he p. 285. r. mutata for mutate p. 294. l. 2. for an r. and. p. 299. l. 15. r. Defendants p. 306. l. 16. r. replication p. 311. l. 19. r. publico p. 325. l. 5. r. Susanna for page 324. r. 336. p. 344 in the margent for inditement r. inducement p. 345. 1. 10. for common by intendment r. by common intendment p. 348. r. Tippin for Pippin p. 349. l. 16. r. acquittance for acquuittance p. 353. l. 19. r. it for l. p. 371 l. 8. for to bar r. to the bar p. 374. for Troos r. Toos p. 388. after Newton and Osborn r. Trin. 1653. 101. 1780. p. 409. for Fenham r. Fenwick p. 398. l. 22. r. action for aation p. 410. l. 45. For Boynton r. Baynton p. 423. l. 39. for cause r. custom p. 432. l. 19. for was sitting r. was not sitting p. 440. l. 2. for of of r. of p. 446. l. 9. for fidavit r. Affidavit p. 447. l. 13. for ttd r. to p. 448. l. 8. for thou r. then p. 462. l. last for gronted r. granted p. 477. for Iackson r. Iohnson p. 474. l. 18. for deeds r. goods p. 180. l. 9. for books r. book and l. 12. 1. that lands for that the lands p. 481 482 483. in the head of the page for Trin. r. Mich.