by my acceptance of the rent I have assented to his entry Distress and Distringas The seising of a stray is not a Distress of it for he that doth seise it claims a property in it 21. Car. B. r. And no man can Distrain that which is his own for to Distrain is but to take one thing from another and to put it into the custody of the Law as a pledge for another thing which is due to him that doth Distrain from him that is distrained An amercement lies not against a Sheriff out of his Office for a misdemeanour done by him whilst he was in his Office but a Distringas nuper Vicecomiti lies against him for it Pasc 24. Car. B. r. The Writ of Venire facias for the Sheriff to summon a Jury is retornable by him into the Court and upon the retorne made of it by him there issues out of the Court another Writ called a Distringas Juratores to cause the Jury to appear in Court at the tryal of the Cause if the tryal be at the Barr in this Court or at the Assises in the County where the Action lies if the tryal be to be there Mich. 24. Car. B. r. The Writ of Distringas Jurators ought to be delivered unto the Sheriff so timely that he may warn the Jury to appear four dayes before the Writ is retornable if the Jurors live within fourty miles of the place of tryal and eight dayes if they live further off 13. May. 1651. B. S. Discontinuance A Discontinuance in process is helped if there follow a verdict in the cause and the party do also appear upon the verdict 21. Car. B. r. Q. Whether every discontinuance of process may be thus helped Where a Vouchee may be essoigned and the essoigne is not adjourned this is a Discontinuance but where it is not necessary the vouchee should be essoigned there the want of adjournment of the essoigne makes no Discontinuance Hill 22. Car. B. r. An appeal may as well be Discontinued by the defect of the process or proceeding in it as it may be by insufficiency of the original Writ Hill 22. Car. B. r. The Plaintiff cannot Discontinue his Action after a generall verdict found against him nor after a special verdict is found upon matter of Law arising upon the evidence given at the tryal in the cause 22. Car. B. r. The Plaintiff may Discontinue his Action by the leave of the Court after he hath joyned in demurrer with the Defendant paying Costs to the Defendant if the demurrer was only upon matter of form in the pleading But if the demurrer was as well upon matter of substance as upon matter of form there he cannot Discontinue his Action by leave of the Court Mich. 24. Car. B. r. Except the Defendant will consent unto it A discontinuance of an Action or Suit is not a perfect Discontinuance untill it be entred upon the Roll but if this Discontinuance be to be pleaded it is not necessary to plead the entry of it Trin. 23. Car. B. r. Where a Demurrer is a generall Demurrer whereas it ought to have been a speciall Demurrer this is a Discontinuance and there can be no judgment given in the case upon such a Demurrer Hill 23. Car. B. r. After a Demurrer upon an Arbitration pleaded it is not usual to Discontinue the Action Mich 24 Car. B. r. Demand Where there is a Demand of a thing to be made there the Demand must be a Legal Demand that is it must be made in such manner as the Law requires otherwise he that made the Demand can take no advantage in Law upon this Demand Hill 21. Car. B. r. If there be no place expressed in a Deed where a rent for Land or a nomine poenae or any other thing demandable shall be made the Law doth then direct that the Demand shall be made upon the Land c. out of which the rent or nomine poenae or other thing demandable do issue or go out of Hill 21. Car. B. r. A Demand of a rent reserved upon a Lease made of a Messuage with Lands belonging to it ought to be made at the Messuage because the Messuage is the most eminent part and place of the thing let and most notorious for the Lessee to take the best notice of the Demand 21. Car. B. r. For the Lessee shall be presumed to be more conversant there then in any other place Yet if the Demand were made upon any part of the Land and the Lessor can prove that the Lessee was there and took notice of it I suppose it is a good Demand but if he were not there when the Demand was made Q. whethâ—r it be a good Demand The parties bringing of an Action of Debt for monies due upon an Obligation and the taking of a distress for rent by him unto whom the rent is due is a good Demand in Law of the Debt due by the Obligation and of the rent Trin. 22. Car. B. R. A Demand in a precipe to recover Lands ought to be more certain than a Demand in a Writ of Dowr 18. Nov. 1650. B. S. For Dowr is one of the things favoured in Law Declaration A Declaration may be against one that is in custody of the Marshall of this Court upon an information although he do not appear to an Action Hill 21. Car. B. R. The Plaintiff is not compellable to file his Declararation yet if it be not filed and afterwards judgment is given in the Cause the judgment is erroneous for want of a Declaration Hill 21. Car. B. R. For before it is filed it is not upon record and so there is no Declaration to warrant the judgment If the Plaintiffs Attorney do file a Declaration against the Defendant in the Kings Bench Office the Defendant is bound to take notice of the Declaration at his peril 21. Car. B. r. A Declaration ought not to vary or differ from the Plaint that is the Cause which the Plaintiff doth express in his Writ why he brings his Writ 21. Car. B. r. For the Writ is the ground of the Declaration and that which warrants it If the Plaintiff declare against the Defendant upon a corrupt Contract made against the Statute of 21. Jac. made against Usury he must express in the Declaration that the Defendant corrupte agreavit or else he must shew that the Contract was made pro usura contrary to the Statute 21. Car. B. r. For he must pursue the words of the Statute One may not Declare against one that is in the Kings Bench prison that is not either in custodia Mareschalli or that hath not filed his bail or that is not a priviledged person in this Court 21. Car. B. r. If one be in custody of the Marescall of this Court at the suit of J. S or have put in bail in this Court to the Action of J. S any other person may put in a Declaration against him the same Terme he
of Action did first arise Mich. 22. Car. B. r. Transitory Actions ought not to be brought within Corporations for their priviledges do properly and onely extend for the tryal of such Actions the causes whereof do arise within their own jurisdictions Mich. 22. Car. B. r. Either an Action upon the Case or an Action of Detinue at the Election of the Plaintiff may be brought for goods detained from him 22. Car. B. r. An Action of Trover and Conversion is in its nature but an Action upon the Case to recover dammages Mich. 22. Car. B. r. An Action upon the Case doth lye by the Statute against the Court of Admiralty for holding Plea of a matter which is not within their jurisdiction Mich. 22. Car. B. r. Where a promise is made by a Fem Covert or by a Servant for the Husband or the Master the Action for breach of this promise ought to be brought against the Husband or the Master for it is their promise and the Wife and the Servant are but instruments Mich. 22. Car. B. r. An Action upon the Case doth lye against one for speaking such words falsly and maliciously of another as if they were truly spoken of the party he might be punished as a Felon or by some Statute fined or imprisoned Mich. 22. Car. B. r. as for calling him Theef c. There is a difference betwixt bringing of an Action and the laying of Action Mich. 22. Car. B. r. It is cause sufficient to ground an Action upon the Case for one to put another to the trouble and charges to Sue for that which is his own Mich. 22. Car. B. r. The cause for bringing an Action upon the Case for the speaking of words against one is the temporal loss or dammage which may accrew to the party against whom they are spoken by the speaking of them and not the words themselves Mich. 22. Car. B. r. An Action upon the Case doth lye for speaking of words against a man by reason of which he lost his marriage Mich. 22. Car. B. r. An Action upon the Case doth not lie for Arrerages of Rent due upon a Lease for yeers because the Law gives a proper Action for it to wit an Action of Debt Mich. 22. Car. B. r. Upon a promise made upon an insimul computaverunt the party to whom the promise is made may either have an Action of Debt or an Action upon the Case at his Election for the thing which was before in dispute and uncertain is by the account and promise reduced to a certainty Mich. 22. Car. B. r. For a Debt certain referred amongst other things to an Arbitration an Action of Debt doth not lye but an Action upon the Case Mich. 22. Car. B. r. It is not safe to be too particular or over curious in the laying of an Action for it is often times a cause that the Action doth fail Hill 22. Car. B. r. An Action upon the Case lies for calling one Whore in London but this is by the special custome of the City Hill 22. Car. B. r. yet 24. Car. Pasc The Court was divided in opinion in this question whether an Action doth lye or not An Action upon the Case lies for a private nusance but not for a publike Rasc 23. Car. B. r. An Action upon the Case doth lie for scandal or for molestation Pasc 23. Car. B. r. Where a Joynt Action doth lie against divers persons of whom some are known to the Plantiff and the rest are not known unto him the Action may be brought against them that are known by their particular names and against them that are not known generally with a Simul cum aliis c. Pasc 23. Car. B. r. In a tryal upon a Trespas and Ejectment or a Replevin touching the title of the Land in question although the Verdict pass against the Plaintiff yet he may bring a new Action for the same Land for such tryals are not final Pasc 23. Car. B. r. because the Land is not recovered in them but the possession In a Case betwixt one Nichols and Webb in the Common Pleas for calling the Plaintiff being an Atturney at Law Knave a Verdict and judgement was given for him and this judgement being afterwards remoyed by a Writ of Error into this Court the Judgement was affirmed in Trin. 12. Car. Rot. 102. Pasc 23. Car. B. r. An Action brought for Rent or breach of Covenant upon a Lease may be laid either in the County where the Lease was made or in the County where the Lands do lie that are let by the Lease Pasc 23. Car. B. r. Vexatious Actions are not favoured in Law nor by the Court but may be referred to the Master of the Office to consider of them Trin. 23. Car. B. r. A violent intendment may bring one within the compass of an Action Mich. 23. Car. B. r. by Rolle One may in some Case bring an Action at the Common Law for that for which he may also have his remedy in the Eclesiastical Court for the Common Law is to be preferred before the Eclesiastical Law where they stand in equal degree in respect of the matter to be tryed Mich. 23. Car. B. r. By a special custome an Action doth lie in some Cases in which at the Common Law no Action doth lie and so was it adjudged 8. and 13. Car. Mich. 23. Car. B. r. The Kings Charter cannot enable the Pattentee to bring an Action which the Common Law allows not Mich. 23. Car. B. r. If one bring an Action upon the Case for divers words spoken whereof some are Actionable and some of them are not yet the Action lies Trin. 24. Car. B. r. The Husband may bring an Action alone for scandalous words spoken against him and his Wife and recover and yet may afterwards bring another Action for to recover dammages done to his Wife by the speaking of the same words Trin. 24. Car. B. r. for the Husband and Wife are both particularly damnified by the speaking of the words An Action upon the Case doth not lie upon a contract which sounds in the realty Q. if the contract be mixt with other matters which are not in the realty whether it will then lie or no Mich. 24. Car. B. r. If one take out a Latitat within the time limited by the Statute for the limitation of Actions it is a good bringing of the Action in due time and he is not barred by the Statute although he do no declare against the party within the time limited by the Statute Mich. 1649 B. S. An Action of the Case doth lie against one that doth Arrest another without cause Pasc 1650. 6. Maii B. S. One may have an Action upon the Case against a Witness that is served with a Subpoena to appear at a tryal and doth not appear but by the Statute Pasc 1650. B. S. 18. Maii 13. Nov. A Joint Action of the Case doth not lie against two several persons for
in the possession of one of the Tenants that holds parcel of these Lands This is a good Lease to try the title of all the Lands But if the Freehold of the Lands in question be not an entire Freehold such a Lease sealed upon parcel of the Lands in question is not good to try the title of all the Lands Pasc 23. Car. B. r. For several Freeholds must have several Leases to try them because they are the Right and Titles of several persons or by several Titles A Lease for years although it be a very long Lease cannot be entailed For the nature of a Chattel cannot be turned into an Inheritance Hill 23. Car. B. r. Which would be if such a Lease which is but a Chattel might be entailed for an Estate intayl is an Estate of Inheritance A Lessee for years is not bound to repair the house let unto him which is burned by accident if there be not a special Covenant in the Lease that he shall leave the house in good repair at the end of the term But if the house be burned by the negligence of the Lessee he shall repair it although there be no such Covenant in the Lease Pasc 24. Car. B. r. For by the Lessees Covenant it shall be intended that he took notice of what accidents might happen and his Covenant shall be taken generally and without exception and strongest against himself In a Lease for years by Indenture the term is not certain before the habendum tenendum in the Lease Term. Trin. 24. Car. B. r. For though it do appear before the habendum tenendum that the Lands in the Lease mentioned are demised unto the Lessee yet it doth not appear for how many years they are demised nor when the Lease is to begin nor when to end until it is declared in the habendum One may raise an Estate for life in Lands to another by way of use viz. by covenanting with A. B. to stand seised to the use of J. S. for and during the natural life of J. S. without Livery and Seisin Mich. 24. Car. B. r. For the Estate is executed in the cestuy que use by the Statute of Vses of 32. H. 8. without Livery If one be in Possession of Lands of another and hath usually paid a Rent unto him for these Lands although it cannot be expresly proved that the Lands were demised at will to him that is thus in possession of the Lands that is that he should hold them as long as both parties should please yet this holding of the Lands shall be interpreted to be by a Lease at will Mich. 1650. B. S. For it shall be presumed that he in possession doth hold the Lands and that the owner of the Lands did receive the Rent for those Lands upon some Contract made between the parties for holding the Lands for some term and for paying of such a rent for them and a less time cannot be supposed then to hold them at will If one make a Lease for years and after the Lessor enters upon the Lands let before the term is expired or determined and doth make a Lease of these Lands to another this second Lease is a good Lease untill the first Lessee doth re-enter 2. Maii. Pasc 1650. B. S. And then the first Lease is revived Although a Lessee for years do lose his Indenture of Demise of the Lands let unto him yet he shall not lose his term in the Lands let by the Indenture which is so lost If it can be proved any way that there was such a term let unto him by Indenture and that it is not determined so it is of any other Estate in Lands if the Deed that created the Estate be lost if it can be proved that there was such a Deed made and that such an Estate was conveyed by the Deed. Pasc 1650. 14. and 15. Maii. 1650. B. S. For the Estate in the Lands is derived from the Party that made the Deed and not from the Deed otherwise then instrumentally and declaratively to shew his minde and intent that conveys the Estate as also the minde and intent of him that receives it Liberty Matters which do concern the Liberty of any one ought to be determined as speedily as lawfully they may be Trin. 22. Car. B. r. For Liberty is counted very precious and exceedingly favoured in Law not only in respect of the particular profit which every one obtains by his Liberty but also in respect of the Weal-publique For one in prison is disabled to be usefull to himself or any other Where any thing is shewed to be done within a Liberty or a Franchize there it is not necessary to shew within what County that Liberty or Franchize doth lie Trin. 23. Car. B. r. Leet If a Court Leet do not choose a Constable to serve within that Leet the Quarter-Sessions of that County where that Leet is may choose one Mich. 22. Car. B. r. For the Commonwealth must not be unserved and it much concerns the Peace of the Commonwealth but more especially of the County wherein the Leet lies to have such Officers chosen Q. Whether a Court Leet may enquire of private Assaults and batteries if there be no bloud shed in the Case For Bacon Justice and Walker apprentise of the Law of the Inner-Temple held that a Court Leet might enquire of them But Rolle Justice held the contrary Pasc 24. Car. B. r. because they are actionable at the Common Law only by the Party injured and are not publique offences against publique Limitation If a Limitation of an Estate in Lands be uncertain such a Limitation is not good in Law but void Hill 22. Car B. r. For the Law cannot tell what construction to make of such a Limitation by reason of the incertainty of it There is a difference between a condition precedent annexed to an estate subsequent to this condition and a Limitation subsequent annexed to an Estate presently vested Hill 22. Car. B. r. A thing that is expresly limited in a Will by plain words shall not be afterwards made incertain by general words which follow in the said Will. Hill 23. Car. B. r. For that were to encounter a thing that is plain and certainly known with that which is obscure and doubtfull A Limitation of an Estate to begin after the determination of an absolute Estate in Fee-simple is a void-Limitation in Law for if the Law should suffer such a Limitation to be made this would be to suffer perpetuities to be made which the Law doth abhor but yet a Limitation of an Estate to begin after a Fee-simple upon a Contingency is a good Limitation 19. April 1650. B. S. For such an Estate may never take effect London By the ancient Custom of the City of London there ought to be but four hundred Carmen allowed within London Hill 23. Car. B. r. Latitat A Latitat out of this Court is in the nature of an original Writ by
to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
this debt at a day to come the party to whom he made this promise cannot bring his Action for the Debt untill the day be passed upon which he promised to pay it By Rolle Chief Justice and by German Justice for he said that the promise is a suspention of the Debt pro tempore 29. Jan. 1650. B. S. If one promise unto a woman that in consideration that she will marry with him he will intermarry with her this is a mutual promise and an Action lies by either party against the other for breach of it 18. Ap. 1650. B. S. Appeal In a Writ of Appeal all the pleadings ought to be in French Mich. 22. Car. B. r. This is since altred by the late Statute that Enacts all proceedings in Law to be in English If in an Appeal the Defendant plead in abatement of the Writ and the Writ be adjudged good it is peremptory and he shall not be permitted to answer over but shall be condemned upon the Writ Mich. 22. Car. B. r. In an Appeal the Appellant ought to appear in Court in person yet upon a motion to the Court the Court may admit him to prosecute his Suite by his Atturney Mich. 22. Car. B. r. The defect in any Process in an Appeal doth discontinue all the Appeal and makes an end of the Action as well as a defect in the Original Writ Hill 22. Car. B. r. Age. If the question be whether the party be of full Age or within Age it shall be tryed by the Court by inspection of the party and not by a Jury Hill 22. Car. B. r. Advantage It is not good practice to take an advantage against the Defendant to obtain a tryal the sooner against him for it causeth clamor from the party and makes him oftentimes press the Court for a new tryal Hill 22. Car. B. r. He that will in pleading take advantage of a particular Statute must shew particularly that he is comprised within the Statute Pasc 23. Car. B. r. Assize An Assize is to be Arraigned in French and first the Defendants Councel doth pray the Court that the Tenant may be called which the Court grants and thereupon he is called by the Cryer of the Court and if upon his calling he do appear then the Tenants Councel do demand Oyer of the Writ of Assize and the Return of it which is granted and thereupon he prayes leave of the Court that he may Imparle which is granted to a short day after and the Jury is adjourned by the Court to appear at that day Hill 22. Car. B. r. Note that the Jurors that are to trye the Assize are called Recognitors of the Assize At the day granted to the Tenant to Imparle unto the Tenant is called and upon his appearance he pleads to the Assize in Latin and upon this an Issue is joyned between the parties and after the Jury or Recognitors of the Assize are examined upon oath upon a voire dire whether they had the view of the land in question and if they say they have had then are they sworn to try the Issue and the Councel do proceed to give them their evidence Pasc 23. Car. B. r. Arraignment If in an Appeal brought the Writ be abated the Defendant cannot be Arraigned upon the count which is grounded upon this Writ Pasc 23. Car. B. r. One Awbry that had been formerly Indicted for upon the Statute for having two Wives and was Out-lawed upon this Indictment was brought to the Bar and Arraigned to this effect First the secondary on the criminal side spake thus Awbry hold up thy hand which the prisoner did then he proceeded thus Awbry thou hast been heretofore Indicted of Felony and thereupon Out-lawed in due course of Law for having of two Wives and hast been Arraigned thereupon what canst thou say for thy self why thou shouldest not have sentence of death pronounced against thee Prisoner I take this exception to the Indictment that it is not said to be found per sacramentum duodecim proborum legalium hominum and I desire I may have Twisden and Hales assigned for my Councel Court You shall have them Thereupon the Councel prayed that the prisoner might bring a Writ of Error to Reverse the Out-lawry Court Let him have it Attaint An Attaint doth lie against a Jury that do give their Verdict contrary to the evidence that is given unto them Pasc 23. Car. B. r. Audita Querela Where the Bail is detained in prison in Execution after the judgement which was given against the Principal is Reversed by a Writ of Error there the Bail may bring an Audita Querela to be discharged Pasc 23. Car. B. r. If one be taken in Execution and is afterwards set at liberty and then is taken again and detained in prison upon the same Execution he may bring his Audita Querela to be enlarged Mich. 24. Car. B. r. If a judgement given in another Court be removed into the Upper Bench Court by a Writ of Error and the party who had the judgement notwithstanding the removal of it by the Writ of Error do bring an Action of debt upon this Judgement in the Court where he obtained the Judgement as he may do if afterwards pending this Action of Debt the Judgement be Reversed by the Writ of Error the Defendant against whom the Judgement was obtained may bring his Audita Querela to be relieved against the Action of Debt brought upon the Judgement 3. Feb. 1650. B. S. One Tritton that was in Execution brought his Audita Querela and prayed he might be Bailed and it was granted and he was bailed by four persons 7. Feb. 1650. B. S. Authority Doctor Cowels book called the Interpreter is not a book of Authority to be urged for Law for it was condemned to be erroneous and scandalous by Parliament and by the authority thereof was publikly burned as erroneous and scandalous A verbal authority given by divers Plaintiffs in an Action of Trespas and Ejectment to deliver a Lease of Ejectment upon the Land though the Lease be signed and sealed by them off of the Land Let in the Lease is a good authority to execute this Lease So held in a tryal at the Bar between Vanlore and Crook Mich. 1649. 7. No. B S. Apurtenant and Apendant Yards Orchards and Guardens are Appurtenances to a Messuage but Lands cannot be said to be Appurtenant to a Messuage though they be used with the Messuage for the Messuage is a Messuage though the Lands be taken away Hill 23. Car. B. r. One Messuage cannot be Appurtenant to another Messuage for they are both entire things of themselves Pasc 24. Car. B. r. Account An Action of Account or an Action of Debt lies at the election of the Plaintiff against one for receiving mony of a third person for the use of the Plaintiff although he had no authority given him to receive it Hill 23. Car. B. r. The Statute of limitations of Actions doth not
them from the Barr to consider of their verdict because they are not under seal 28. Apr. 1651. B. S. But all Deeds or writings under seal and given in evidence they may have but nothing which was not given in evidence may they have Conveyance A Conveyance made unto one by his reputed Name although he is not the same person in Law as he is reputed yet is the Conveyance good but if such a Conveyance be made to raise a use then it is not good 28. Apr. 1651. B. S. A Conveyance cannot be fraudulent in part of it and good as to the rest 30. Apr. 1650. B. S. For if it be fraudulent and void in part it is void in all for it cannot be divided If I Covenant to Convey Lands to another I am bound to do it at my own charges except it be otherwise agreed betwixt us Trin. 1651. B. S. Certificate This Court will not make a Rule for a Judg to make a Certificate to them of a matter done before them but if the Judg will do it voluntarily they will receive it Clarke By Roll Chief Justice no Clarke ought to be admitted into the Office of the Custos brevium without the consent of the Lord Chief Justice first obtained and those that are admitted ought to be chosen out of the best of the Clarks in the Upper bench Office 1655. Departure When the Plaintiff doth plead in his Replication a matter which is contrary to that which is admitted in his Declaration this is a Departure from his Plea Mich. 24. Car. B. S. Denison An Alien that is made a Denison by the Kings Letters Patents is thereby enabled to purchase Lands but he is not thereby enabled to inherit the Lands of his ancestors as Heir at Law but as a Purchaser he may injoy Lands of his ancestors Mich. 42. Car. B. S. But if he be Naturalized by Act of Parliament he may inherit them as Heir at Law as well as have them by purchase Delivery It hath been the course to Deliver a Lease of Ejectment to the party to whom the Letter of Attorney is delivered and for the Attorney by vertue of his Letter of Attorney to deliver possession of the Land let by Lease upon his delivery of the Lease Pasc 24. Car. B. r. A Deed cannot be Delivered as an escrow to the party himself to whom the Deed is made Trin. 24. Car. B. r. But it must be delivered to a stranger as an escroe for so soon as it is Delivered to the party to whom it is made it takes effect as a Deed and cannot be an escroe Dower A woman was not Dowable of Tythes before the Statute of 32. H. 8. 24. Car. B. r. A woman is Dowable of a Common appendant but not of a Common in gross Pasc 24. Car. B. r. For Common appendant belongs to Lands and Tenements whereof she was endowable and cannot be severed A woman may be endowed of the profits of an Office or of a Faire or of a Market Pasc 24. Car. B. r. Dower is favoured in Law and as it is favoured in it self so is the party that sues to recover her Dower favoured in her proceedings in Law to recover it as much as in jostice may be permitted Pasc 24. Car. B. r. Difference There is a Difference between the Latine words in dilaté and immediaté and it is more proper to direct a Writ to be retorned in dilate then to direct it to be retorned immediate Hill 23. Car. B. r. For to retorne it in dilate is to retorn it with as much speed as may be and not to use any trifling excuses or delayes to retard the retorn of it but to retorn it immediate is impossible for it will require some convenient time to do it in and as it may fall out longer then is expected Depositions Depositions taken in a Cause depending in Chancery though the Cause be there determined or dismissed may be given in evidence at a tryal at the Barr in a suit depending here between the same parties that sued in the Chancery if the party that deposed to the Interrogatories be dead at the time of the tryal else not but those Witnesses must appear in person in Court and be examined viva voce in the Cause and so it is of Depositions taken in any other Court Mich. 24. Car. B. r. Discretion Where a thing is left to any person to be done according to his Descretion the Law doth intend it must be done with sound Descretion and according to Law And this Court hath power to redress things that are otherwise done notwithstanding they be left to the Descretion of those that do them Trin. 23. Car. B. r. For their Descretion is not properly Discretion but folly or madness Devise A Devise of the profits of Lands for years is a Devise of the Lands themselves for so many years as the profits are Devised Trin. 23. Car. B. r. If a man Deviss his Lands to his children without fayeing more this is but a Devise for life 36. Eliz. B. r. In Dickons and Marshals Case adjudged Hill 23. Car. B. r. A Devise to one of any thing which the Law would have cast upon him although it had not been Devised untohim is a void Devise Mich. 24. Car. B r. For his title to it by Law is his ancient and best title and the Law will adjudge him to take by that An Administrator of a Term cannot Devise it but an Executor of a Term may for an Executor hath a greater interest in his own right then an Administrator hath 1651. B. r. Deodands Deodands that is the Goods and Chattels of which felo de se that is of him that kills himself do belong to the Kings chief Almoner that is he that disposeth of the Kings Alms to distribute them to the poor or to employ them in other pious uses and a discharge given for them to any person that hath such Goods of a felo de se in his possession by the Almoner or his Deputy is a good discharge in Law for them but a discharge given for them by an under-Deputy it no good discharge Trin. 23. Car. B. r. Demurrer If a Demurrer be entred it cannot be waived except both the Plaintiff and Defendant do consent unto it Mich. 22. Car. B. r. Nor then without leave of the Court. A Demurrer may be upon a replication Rejoynder c. as well as upon a Plea Mich. 23. Car. B. r. For all parts of a pleading to issue ought to be according to the Rules of Law and if any part fail the whole is naught If the Court do perceive that a Demurrer is put in onely to put off a tryal or for delaying of the proceedings they will not allow of such a Demurrer nor enjoyn the other party to joyn in the Demurrer but will give Judgement against the party upon his frivolous demurrer Mich. 22. Car. B. r. And 24. Car. B. r. Where there ought to be
Office where the Declaration is filled Yet they usually do it It is not necessary for the Plaintiffs Attorney to set his hand unto the Declaration which he delivers to the Defendants Attorney but the Defendants Attorney must receive it without his hand set to it If he know him to be the Attorney in the Cause 28. Novem. 1650. B. S. If one be in custody of the Marshall of this Court any person may put in a Declaration against him and the Declaration so put in is a good Declaration and the party must plead unto it although he be illegally in custody for the Court will not trouble themselves to enquire how the party came into Prison Pasc 1652. B. S. If a Prisoner be brought into the Court of the upper-Bench by a Writ of Habeas Corpus to answer a Suite there depending against him a stranger cannot declare against him there upon the by untill he be in custody of the Marshall but he that brought the Prisoner thither by the Habeas Corpus may declare against the Prisoner in Court before he is turned over in custody to the Marshall Pasc 1652. B. S. One ought not to declare against a Defendant in this Court untill his bail be filed By Rolle Chief Justice Pasc 1652. B. S. That is if he do put in bail Duty The words foris faceret may create a Duty Hill 21. Car. B. r. For the party to whom a thing is forfeited hath an intrest in the thing forfeited before he recovers it Dammages Dammages ought not to be given for that which is not at all contained in the Plaintiffs Declaration or for that which is immaterially alledged or against Law but onely for that which is materially alledged and set forth in the Declaration Hill 21. Car. B. r. 23. Car. B. r. Where an Action upon the Case and an Action of trespass are both founded upon one and the same Dammage done to the Plaintiff he may recover joynt Dammages upon both the Actions Hill 21. Car. B. r. Where a trespass for which an Action is brought is entire and not severall trespasses there ought not to be severall Dammages given against the Defendant Mich 21. Car. B. r. Where one joynt Action of trespass is brought for two severall trespasses and the trespasses are found severally the Dammages may be severall but if one Action of Trespass be brought against three Trespassers and two of the Trespassers against whom the Action is brought be found guilty and the third is found not guilty there the Dammages may notwithstanding be intire Mich. 22. Car. B. r. For the trespass is but one joynt trespass though the Action be brought against divers persons But in the former Case there are severall trespasses found and so the Dammages may be severall though the Action be a joynt Action In an Action upon the Case the Jury may finde less Dammages then the Plaintiff layes in his Declaration but they cannot finde more then is laid in the Declaration Mich. 22. Car. B. r. For the Law presumes that the Plaintiff doth best know how much he is damnified by the Defendant and therefore though it may be the Plaintiff will pretend he is more damnified then in truth he is as is often done yet it shall not be presumed that the Plaintiff will say he is less damnified by the Defendant then in truth he is And therefore for the Jury to give more Dammages then the Plaintiff declares upon would be unreasonable which the Law will not suffer Double Dammages given for one and the same Trespass are not well given Mich. 22 Car. B. r. For the Law uses to proportion the amends or satisfaction for an injury done according to the loss which the party to whom the injury is done doth receive by the injury Upon a judgment given upon a demurrer upon an Action of the Case the Court is not to assesse the Dammages but the Jury is to do it Mich. 22. Car. B. r. For the Court gives the judgment upon the matter in Law but the Dammages are to be given upon consideration of the matter of fact which is proper only for the Jury to enquire of In an Assize the Jury ought to give Dammages pending the Suit because there is no remedy over to the Dammages as in an Ejectione firmae but finall Dammages are to be given Pasc 23. Car. B. r. Upon a demurrer to an evidence the Court did direct the Jury who should have tried the issue if the demurrer had not been to finde Dammages for the Plaintiff if upon arguing the demurrer the Court should give judgment for him Pasc 23. Car. B. r. For the Jury may consider of the matter in fact which should have been tryed if the evidence had not been demurred unto Where Dammages are found severally the Plaintiff may relinquish part of the Dammages and enter his judgment for the rest Hill 23. Car. B. r. But where the Dammages are entire he may not do it without leave of the Court Pasc 24. Car. B. r. 19. Ap. 1648. The Jury ought to finde Dammages in a speciall verdict found in an Action of Trespass and Ejectment for untill the Plaintiffs Title is found which is not done by the speciall verdict the Plaintiff shall be accounted a Trespasser against the Defendant because the Defendant was in possession of the Land when the Plaintiff entred and made the Lease of the Land Pasc 24. Car. B. r. For he that is in possession of Land hath title to it against all the world untill a better title is proved Melior est conditio possidentis Where a debt sued for doth appear certainly to the Court what it is there if the Plaintiff recover the Court doth tax the Dammages and not the Jury but where it doth not appear certainly to the Court there it is left to the Jury to enquire of and to tax them Trin. 24. Car. B. r. A Writ of Enquiry of Dammages in a Cause tryed in the Mareschals Court may be executed by the Judges in the Court there Trin. 24. Car. B. r. Greatr Costs and Dammages may be given in some Cases then the Dammages laid in the Declaration Trin. 24. Car. B. r. For the Plaintiffs Declaration is only for the Dammages due unto him by reason of the injury done him by the Defendant But the Costs are given in respect of the Plaintiffs expences in his suit to recover the Dammages In a Replevin brought and a speciall verdict thereupon found Costs and Dammages shall be given on either side according as the issue shall be found If a judgment be given upon a nihil dicit in an Action of Debt brought in the Common Pleaâ— that Court will give Costs and Dammages and so is it used to be done in inferior Courts Trin. 24. Car. B. r. But Q whether it be so inthis Court If entire Dammages be given in an Action brought for divers severall things whereas it is not possible to have Dammages for some of them the Dammages
was made but if an Action of Debt be brought against an Administrator for Rent due for Lands left by the Plaintiff to the Intestate but growing due in the time of the Administrator viz. since the Letters of Administration were granted unto him the Action must be brought in the County where the Lands do lye for which the Rent is due Mich. 22. Car. B. r. An indebitatus assumpsit generality is not good to create a Debt but there must something else be made appear to the Court to make a Debt to be due to the party that brings an Action of Debt or else the Action will not lye Mich. 22. Car. B. r. For else to declare upon an indebitatus assumpsit is no more then if the parties declared upon a nudum pactum An Action of Debt doth lye for a Councellor or for an Atturney for their Fees against the party that retained them Mich. 22. Car. B. r. Q. Whether it lie for a Councellor for his Fee is honorarium Quiddam and not mercenarium a Gratuity rather then Wages or a Salary By Rolle Chief Justice An Action of Debt doth lie upon a perfect Contract in Law betwixt the parties and not an Action upon the Case 22. Car. B. r. For generally where the Law directs a certain Action there an Action upon the Case is not to be brought An Action of Debt brought against an Executor for Rent grown due in the time of the Executor ought to be brought in the detinet and debet Hill 22. Car. B. r. So then said to be adjudged in Royton and Mees Case But if the Action be brought for Rent due in the life of the Testator the Action ought to be brought in the detinet onely Where a certain sum of mony is to be paid upon an Obligation at several dayes of payment expressed in the Condition of the Obligation though the mony be not paid accordingly yet an Action of Debt cannot be brought for any part of this money untill all the days of payment expressed in the Obligation be past Pasc 24. Car. B. r. Because the penalty of the Obligation is to be recovered which is not wholly due untill the whole Condition be broken which is not so untill the party fail in the last day of payment If one deliver necessaries to an Infant viz. meat drink or cloaths and he promise to pay for them an Action of Debt will lye against the Infant upon this promise if he perform it not But if the party come to an account with the Infant forwhat is due unto him from the Infant and thereby doth state the sum due unto him an Action of Debt doth not lye against the Infant for the moneys stated to be due unto the party upon this account Trin. 24. Car. B. r. If a woman sole be indebted and then take a husband the Debt is now thereby become the Debt of the husband and of the wife that is to say the wives proper Debt and the husbands Debt in the right of his wife and the wife ought to be sued for this Debt together with her husband and if the husband dye whereby the Action is abated yet the wife may be sued again for this Debt Trin. 24. Car. B. r. A Judgement was Reversed in this Court by a Writ of Error because it was given to recover a Legacy Trin. 24. Car. B. r. For then a Legacy was not recoverable at the Common Law but in the Eclesiastical Court or in the Chancery But now by a late Statute an Action lies for a Legacy at the Common Law See the Statute An Action of Debt doth not lie upon a Judgement given in this Court after the Record thereof is removed by a Writ of Error out of this Court into the Exchequer Chamber Trin. 23. Car. B. r. An Action of Debt doth not lie against an Executor which is grounded upon a simple contract made by the Testator Hill 1649. Jan. 31. B. r. Q. And Action of Debt doth lie against a Goaler for suffering a prisoner in Execution to escape by the party at whose Suit the Prisoner was committed in Execution Trin. 1650. B. r. 15. Junii One may bring an Action of Debt for Rent in what County he pleaseth 9. Nov. 1650. B. r. Because it sounds not in the realty Q. If a judgement be given for the Plaintiff in an Action of Debt in the Common Pleas and afterwards the transcript of the Record is removed into this Court by a Writ of Error yet the Plaintiff for whom the Judgement was there given may bring an Action of Debt there upon that Judgement but if the Judgement be Reversed in this Court upon the Writ of Error and after the party proceed in the Common Pleas in his Action of Debt the party against whom he thus proceeds may bring his Audita Querela to be relieved against this second Action 3. Feb. 1650. B. S. For by the reversal of the Judgement the ground of the second Action is destroyed One may joyn two Debts due upon two severall Obligations from the same party in one Action of Debt 6. Feb. 1650. B. S. And declare in one Declaration upon the several Obligations If one do deliver goods to I. S. to my use if the party to whom they were delivered do refuse to deliver them unto me I may have either an Action of Debt or an Action of Accompt for them against him to whom there were delivered at my election 22. Ap. 1651. B. S. Deeds Such construction ought to be made of a Deed that it may agree with the intent of the parties to the Deed if their intent do not contradict the Rule of Law Hill 22. Car. B. r. A Deed of Indenture made betwixt two ought to be Sealed and Delivered by both parties to the Indentures otherwise it cannot be said to be a Deed indented Trin. 23. Car. B. r. If all the parts of a Deed may by Law stand together no one part of that Deed shall be so interpreted as to make either the whole Deed or any part of it to be voide Pasc 24. Car. B. r. A Deed cannot be delivered as an escrew to the party himself who is to take by the Deed. Trin. 24. Car. B. r 1650. Trin. B. S. For the delivery of it makes it the parties Deed. If a Deed do say This Indenture made whereas the Deed is not endented yet it may be a good Deed for it may work as a Deed Poll though it cannot work as an Indenture If it do not appear by the Fabrick of a Deed that Lands do pass by the Deed by way of Feoffment yet the Land may pass by it by way of use if there be a consideration which is sufficient in Law to raise a use expressed in the Deed. Ejectment IF one Seal a Lease of Ejectment to try a title of of Land it is not necessary to give notice of the sealing of this Lease unto him whose title is concerned but it is sufficient
to give notice of the Lease to the Tenant or Undertenant of the Land in question Hill 23. Car. B. r. For the possession of the Land is primarly in question in this Action and is to be recovered and not the title of the Land though the title of the Land do come in question and is tryed collaterally But now by the new way of practice it is not usual to Seal any Lease of Ejectment at all in an Action of Trespass and Ejectment but the Plaintiff that intends to try the title delivers a Declaration to an Ejector of his own making and that Ejector sends or delivers the Declaration to to the Tenant in possession who gives notice thereof to his Lessor whose title is concerned to defend the title and if neither the Tenant in possession nor his Lessor will defend the title then the Ejector will confess a Judgement to the Plaintiff and so the Tenant will be stripped out of possession but if they or either of them will defend the title then it is usual for them to move the Court that they may be made Ejector to defend the title which the Court will grant if they will Consess Lease Entry and Ouster at the tryal and stand meerly upon the title and if at the tryal they do not then Judgement to be entred against the Plaintiffes Ejector If one do do occupy the Lands in question in an Action of Trespass and Ejectment after the Ejectment Lease made to try the title of the Land is Sealed this is an Ejectment in Law of the Lands in question Trin. 22. Car. B. r. For the keeping of possession of the Lands against him to whom they are let by the Lease doth amount to an Entry upon him although he was never in possession of the Land let If there be two Ejectors made in an ejectione â—irmae one of them may be found guilty of the Trespass and Ejectment and the other as the case may fall out may be acquitted Trin. 22. Car. B. r. An Ejector in Law is any person that comes upon any part of the Land c. in the Ejectment Lease although it be by chance and with no intent to disturbe the Lessee of the possession next after the Sealing and Delivery of the Ejectment Lease and such an Ejector is a good Ejector to bring an Action of ejectione firmae against to try the title of the Land in question Mich. 22. Car. B. r. 1650. B. S. And there is no prejudice to any person by having such an Ejector He that is to try a title of Land by an Action of Trespass and Ejectment ought not to make an Ejector of his own against whom he may bring his Action or to consent or agree with one to come upon the Land let in the Ejectment Lease with an intent to make him an Ejector and to bring his Action against him Mich. 22. Car. B. r. For by that means the Tenant in possession of the Land was often put out of possession by a Writ of habere facias possessionem without any notice given either to him or his Lessor of the Suite But now this is altered by the new way of practise formerly mentioned In every ejectione firmae the Plaintiff ought to set forth in his Declaration in what Parish the Lands in question do lie that the venue may be from the place where the Lands do lie and not from the body of the County except it be when as the Lands in question do not lie in any Vill or Hamlet Mich. 22. Car. B. r. Or lieu Conus for in all such causes it is of necessity that the Jury be of the body of the County because there is not any more particular place from whence the venue may come If one doclare upon a Lease in an ejectione firmae and that by vertue of that Lease he was in possession of the Lands thereby let unto him untill that he was Ejected by the Defendant it is supposed that the Lessor that made the Lease unto him was alive at the time when he brought his Action Mich. 22. Car. B. r. An Ejectment or an Ouster is either an actual Ejectment as when the Lessee is actually put out of the Land let unto him or else it is an Ejectment by implication of Law Pasc 22. Car. B. r. An ejectione firmae ought to be brought for a thing that is certain and not of an incertain thing Pasc 23. Car. B. r. For if the thing be uncertain the Sheriff cannot if the Plaintiff recover know of what to deliver the possession upon the Writ of habere facias possessionem If the Plaintiff in an ejectione firmae do declare for a house lying in two Parishes if the house do lye in either of the Parishes and do not lye in both of them yet is the Declaration good Pasc 23. Car. B. r. For there is certainty enough in it Although in an ejectione firmae there be a Verdict and a Judgement against the Plaintiff yet the Plaintiff may bring another Action of Trespass and Ejectment for the Land Trin. 23. Car. B. r. He may bring divers Actions one after another if he please for a Judgement in that Action is not final By Rolle Chief Justice It is doubtful whether an ejectione firmae do lie de uno crofto Trin. 23. Car. B. r. For the incertainty of the word Croft what it is and what it doth contain If a Lease of Ejectment to try the title of Lands in the possession of I. S. be made to one and after the Lease is made the Wife of I. S. or the servant of I. S. do keep the possession of the Land for I. S. and I. S. do after this occupy the Land I. S. is an Ejector against whom an Action may be brought to try the title of the Land Mich. 23. Car. B. r. 24. Car. B. r. Pasc One who hath title to the Land in question in an ejectione firmae may upon motion to the Court be made a party to the Action that he may thereby defend his title if he will confess the Lease Entry and Ouster Hill 23. Car. B. S. Vid. Supra If a Lease of Ejectment be made of a house and lands occupyed with it to try the title of them and the wife of the occupyer of the house and land continue in possession of the house after the Ejectment Lease is made she is an Ejector as to the house but not as to the Lands Pasc 1652. He who is in any part of a Messuage viz. in the Barn Stable Stall c. after the Lease of Ejectment Sealed and Delivered to try the title of the Messuage is an Eject or for the whole Messuage Pasc 24. Car. B. r. The owner of the Land may consent with the party that claims the Land to make an Ejector to try the title of it if it be not a plot betwixt him and the Ejector Mich. 24. Car. B. r. viz. To strip the Tenant of the Land in
possession out of his possession of it for the Law doth not countenance fraud If divers persons come together upon the Land in question next after the Ejectment Lease to try the title of the Land is Sealed and Delivered it is in the election of the Plaintiff that intends to try the title to bring his Action against which of them he pleaseth 1650. B. S. For if the Plaintiff have right they be all Trespassors and it is no wrong to bring the Action against any of them If a Lease of Ejectment be made to one to try a title of a house and the Lessee to whom the Lease is made go into the Entry of the house to make his Entry by vertue of the Lease and one that is in the house shut an inner door of the house and keep the Lessee out of an inner room of the house this is not an Ejectment nor is that person such an Ejector as an Action may be brought against Mich. 1650. B. S. For when he is entred in at the door of the house he is in possession of the house and is not Ejected out of it though he have not possession of the whole house An ejectione firmae doth not lie of a close of land without expressing either the name or the nature of the Land Hill 1649. 30. Jan. B. S. Because it is not known certainly what is meant by a Close without some description of it either by its name or nature It was then said an ejectione firmae doth lye of a Croft of Land sed Q for it was formerly doubted If one Seal a Lease of Ejectment and do thereupon give his Lesse possession of the Lands let and the Lessee is not ejected at that time the Lessee may enter into the Lands again at another time and if the Lessee be then Ejected he may bring an Action of Trespas and Ejectment upon this Ejectment Pasc 1650. B. S. 10. Maii. An ejectione firmae doth lye of a Cottage Pasc 1650. 12. Maii. Evidence The Allegation of the Councel at the Bar is no Evidence to the Jury but the matter which ensues upon this Allegation to prove it is good Evidence upon a tryal at the Bar. Mich. 22. Car. B. r. Witnesses who are to be made use of to give their Testimony at a tryal at the Bar if by reason of sickness or otherwayes they be not able to travel and come to the tryal may by order of the Court be examined upon Oath touching their knowledge in the Country where they live and their Depositions so taken are to be admitted to be read as Evidence to the Jury at the tryal Mich 22. Car. B. r. Depositions taken in Chancery may be order of the Court be read as Evidence to a Jury upon a tryal at the Bar by the Plaintiff or the Defendant or both if the Depositions were taken in the cause which is to be tryed at the Bar and between the same parties that are Plaintiff and Defendant in the tryal Mich. 22. Car. B. r. And so it is of Bills Answers Replications c. in Chancery But if the parties that Deposed in Chancery be living at the time of the tryal they ought to be examined ore tenus in Court and their Depositions are not in such case to be made use of Pasc 1650. B. S. The admittance of one to be an Administrator in an inferior Diocess is a Bar against the person that doth so admit him to give Evidence at a tryal that the Intestate had not bona not a bilia in divers Diocesses at the time of his death Mich. 22. Car B. r. For such Evidence would be contrary to what he hath formerly admitted The Court will not permit the Jury upon a tryal at the Bar to carry any wrightings with them out of the Court as Evidence for them to consider of but such as are under Seal and have been proved in Court Mich. 22. Car. B. r. For others are of no credit An Evidence given to a Jury may be answered by the Councel either by confessing and avoiding it or else by encountring the Evidence given with giving stronger Evidence and of greater credit on the other side Mich. 22. Car. B. r. A thing which is concluded in the Ecclesiastical Court which doth concern Lands is not to be given in Evidence to a Jury at a tryal concerning those Lands Mich. 22. Car. B. r. For the Courts of Common Law are not to be guided by their proceedings A person that may be admitted as a Witness at a tryal may give words in Evidence to the Jury which were spoken to him by another person who by the Rules of the Court might not be admitted as a Witness at the tryal Mich. 22. Car. B. r. For it is but matter of Evidence and is left to the Jury how far they will give credit to them It is not of necessity that a Deed or a Record given in Evidence to a Jury be shewed in Court but if it be proved that there was such a Deed or such a Record as are given in Evidence it is sufficient Trin. 23. Car. B. r. For a Deed or a Record may be imbezled or lâ—st and so not to be produced The Judges of the Court cannot try a matter of Fact in question upon a Demurrer to an evidence and therefore the Plaintiff and the Defendant must agree upon it and confess it Trin. 23. Car. B. r. For else the Court will not proceed to deliver their opinions touching the matter in Law Demurred upon Matter in Law ought not to be given in Evidence at a tryal but onely matter of Fact is to be given in Evidence and the matter in Law if there be any that is disputable is to be reserved to be spoken to in Arrest of Judgement Trin. 23. Car. B. r. For the Jury are onely to try matters of Fact If a Fem Covert acknowledge a thing at a tryal which is for the advantage of her husband but is for her own disadvantage yet this is no good Evidence to a Jury Mich. 23. Car. B. r. For her husbands present advantage is Hers also and is more looked upon then her future disadvantage The Defendants Councel ought to conclude by way of answer to the Evidence that is given unto the Jury by the Plaintiffs Councel Pasc 24. Car. B. r. For if the Plaintiffs Councel doth begin the Evidence it is reason the Defendant should speak last because he is upon the defensive part and is to give an answer to all that is said against him in matter of Evidence but the Plaintiffs Councel is to sum up his Evidence last to the Jury An ancient writing that is proved to have been found amongst Deeds and Evidences of Land may be given in Evidence to a Jury although the executing of it cannot be proved Mich. 24. Car. B. r. For it is very hard to prove things that are very ancient and the finding them in such a place is a presumption that
afternoon upon the last day of the Terme and so they said the Common Pleas had done Trin. 1651. B. S. This was that the Attorneys might not defer their Clyents businesses to the last of the Terme as too usually some doe Jeofailes Q If an Issue be joyned upon a collateral point if there be no place alledged whence the Venue may come this is ayded by the Statute of Jeofailes but if the Issue be not joyned upon a collateral point and there is no place alledged from whence the Venue may come it is not helped by the Statute Mich. 22. Car. B. r. Interrogatory One who is by the rule of the Court to be examined upon Interrogatories ought to attend the Master of the Office who is to examin him within four dayes after the Interrogatories are put in for him to be examined upon Mich. 22. Car. B. r. Intendment and Intentions The Law doth not punish any one for the Intention to do ill if the Intention be not put in execution except it be in the case of Treason for there Intentions if they be clearly proved by circumstances shall be punished equally as if they had been put in execution Trin. 22. Car. B. r. But this is only in high treason and is done in terrorem to deter men from that odious offence and of so high a nature being not acted against the Person of one sole person but even against the whole Kingdom which would suffer by it There shall not be Intended to be more then one Parish in a City although there be many except the contrary be shewed Trin 24. Car. B. r. For it is not of the essence or constitution of a City to consist of more Parishes then one but there may be a City that hath but one Parish in it as the City of Rochester in Kent If one be bound in an Obligation to J. S. in a certain summe of money and in the solvendum of the Bond it is not expressed unto whom the money shall be paid the Law will intend it is to be paid to the Obligee Pasc 24. Car. B. r. Because no other person is particularly named unto whom the payment should be made for it shall be intended the money was to be paid to some body and there being no person particularized to whom it should be paid it is but reasonable it should be paid to the Obligee A Court which is pleaded generally to be held secundum consuetudinem shall be intended to be held according to the Common Law but if it be pleaded to be held according to a Custome whereof the memory of man is not to the contrary it shall be adjudged to be a Court held by Custome Trin. 24. Car. B. r. For a Custome must be so particularly pleaded If the Plaintiff do plead that the Defendant did become bound unto him per Obligationem suam it shall be intended that this Obligation was sealed and delivered unto the Plaintiff Mich. 24. Car B. r. For else he did not become bound unto him by his Obligation for an Obligation that is not sealed and delivered is no Obligatien nor is the Obligee bound by it The Intent of the parties shall not be implied against the direct Rules of the Law 5. Feb. Hill 1649. B. r. For an Intent is but to be guessed at and doth not certainly appear but the Law is direct and plain and therefore it shall not be presumed the parties did mean to do any thing against Law where their intent doth not appear by express words Impossibility A thing which is Impossible in the Law is all one with a thing which is Impossible in nature 21. Car. B. r. For the Common Law is not contradictory in any thing to the Law of nature but agrees with it in all things and may be said to be the same in effect with it Impropriation An Impropriatinn cannot be made but by the Licence of the King Mich. 1649. B. Sup. And he may do it as he hath the supreme authority in all Ecclesiastical as well as civil matters within his dominions Livery and Seisin A Corporation cannot make Livery and Seisin to pass away the Freehold Lands belonging to the Corporation but they must make a Letter of Attorney to another under their Common Seal to make Livery and Seisin Mich. 23. Car. B. r. For Livery and Seisin must be made by one and not by a multitude If a Tenant for years of Land do consent that Livery and Seisin shall be made of the Land let unto him unto him that hath purchased the reversion of those Lands and it be made accordingly this is a good Livery and Seisin to make the reversion pass although that the Tenant for years do not go off from the Land at the time when the Livery and Seisin was made but was then in actual possession of it Mich. 23. Car. B. r. For his Term is not prejudiced by the Livery For only the reversion passeth and his Assent amounts but to an Attornment to him to whom the Livery is made If a Deed of Feofment be made of Land Habendum à die datus and the next day after the date of the Deed the Feoffee gives Livery and Seisin of this Land this is a good Livery and Seisin but if this Livery and Seisin were made by an Attorney Q. Quid operatur Mich. 23. Car. B. r. One may give Authority by Paroll unto another to take Livery and Seisin of Lands for him and if such Livery and Seisin be taken accordingly it is good By Rolle Chief Justice Mich. 1650. B. S. For this shews his assent to take the Lands by the Livery and Seisin and the other is but as a Conduit-pipe to convey the Land unto him Lease Lessor and Lessee If one take a Lease by Indenture for years of a ruinous house or that wanteth Reparations and do covenant in the Lease to leave the house at the end of the term in good repair heis bound to do it and an Action of Covenant doth lie for the Lessor against him if he do it 21. Car. B. r. But if he had not covenanted expresly to do it he had not been bound by Law to do it A Lease which is only voidable and not absolutely void must be made void by the Lessors re-entry but if a Lease be absolutely void there needeth no re-entry 21. Car. B. r. That is said voidable which may be made void if the Lessor will and may be continued if he please at his election it is made void by re-entry and putting out the Lessee or else it is continued by receiving the rent and thereby acknowledging him still for his Tenant Where the Freehold of Lands in question in an Action of Trespass and Ejectment is entire although these Lands be let out to several persons for years by several Leases if he whose title is concerned and doth intend to try the Title of these Lands do seal a Lease of Ejectment upon the Lands only that are
of Mich. 22. Car. B. r. Except he tye himself by special covenant and agreement to do it for the Law will not put an unnecessary trouble upon any man If one do commence an Action in this Court against another and doth not proceed to a tryal in his action by the space of a whole year next after he began his Suit he ought afterwards by the Rules of the Court to give the Defendant one whole Terms Notice that he will try his cause before he proceed to a tryal therein Mich. 22. Car B. r. For his delay might give occasion to the Defendant to conceive that he intended to let his Action fall and so to neglect to make provision for his Defence at the tryal and therefore it is but reason that he should have more then ordinary Notice in an extraordinary case If the Plaintiff give the Defendant Notice for a tryal against him and do not try his cause the same Term he gave Notice for the tryal he ought by the Rules of the Court to give the Defendant new Notice before he proceed to a tryal afterwards but if the Plaintiff do try his cause the same Term wherein he gave Notice he would try his cause although it be at another day after the day he gave Notice he would try it yet he is not bound to give new Notice before he try it for the Defendant is bound to attend the try-all at his own perill Mich. 22. Car. B. r. So it is where Notice is given for a tryal at the Assizes and by reason of multiplicity of business the cause cannot be tryed at that Assizes but though the cause cannot be tryed at one day of that Assizes yet it may be tryed at another day and therefore the parties must attend all the Assizes at their perill without further Notice If Notice for a tryal be given to the Defendant himself or to his Atturney this is a good Notice but if Notice be given thereof to the Councel of the Defendant it is not a good Notice Hill 22. Car. B. r. For Councel are not bound to take notice of such a warning for a tryal nor to give the Clyent Notice thereof and it may be though one have been formerly of Councel with the Defendant in other business or in the cause to be tryed yet he may not be of Councel at the tryal The Plaintiff and Defendant are both bound to take Notice of such Rules of the Court as do concern the proceedings of their cause at their own perills Hill 22. Car. B. r. For if they know them not yet they may inform themselves by their Councel and Atturneys But this is onely to be understood of the general Rules and not of particular rules made upon the motion of either party for of such rules their ought to be notice given to the party concerned Pasc 24. Car. B. r. When Councel are to argue a matter in Law in Court the Judges ought to have Notice thereof given unto them before the day except it be where the Court have appointed a set day for it or if there be not such Notice given then the cause is to be put in the paper of causes that it may come on in course to be spoken unto Pasc 23. Car. B. r. By putting it in the paper the Judges have Notice for they have a paper of the causes to be spoken to in matter of Law the day before they be spoken to by the Officer of the Court. The Officers in Court ought to take Notice of the proceedings of the causes depending in Court Pasc 23. Car. B. r. For for that cause do they sit in Court If the Plaintiff or his Atturney do give Notice unto the Sollicitor of the Defendant that he intends to try his cause at such a time this is a good Notice of the tryal although it be not given unto the Defendant nor his Atturney Pasc 23. Car. B. r. For it is the duty of the Sollicitor to inform his Clyent of it and if he do it not it shall be accounted the folly of the Clyent to entertain a Sollicitor that is so careless in his business and in this case there is no default in the Plaintiff The Defendant ought to have eight dayes Notice of the tryal of the Plaintiffs cause before it be tryed if he live twenty or thirty miles off from the place where the cause is to be tryed but if he live further off he ought to have fourteen dayes Notice before the tryal Trin. 23. Car. B. r. That the Defendant may have convenient time for his journey and to prepare his Councel and witnesses for his tryal The Plaintiff may if he please give the Defendant Notice when he intends to try his cause the same day that he hath joyned Issue with the Defendant in the cause to be tryed betwixt them Trin. 23. Car. B. r. If one be bound by the rule of the Court to give unto another personal Notice of a thing it is not sufficient that Notice be left at the dwelling house of the party Mich. 23. Car. B. r. For personal Notice is Notice given to the person of the party himself and not to another It is not necessary for the Plaintiff to give new Notice of the tryal of his cause where a retraxit is entred for this is but a forbearance to try his cause hac vice and he may afterwards proceed notwithstanding the retraxit was entred Mich. 23. Car. B. r. The entring of a retraxit is when the Plaintiff after he hath entred his cause to be tryed and hath put in his Record doth make an entry in the Judges book that he hath withdrawn his record and intends not then to proceed to his tryal It is sufficient upon an Action of Trespass and Ejectment brought to try the title of Land if the Tenant in possession of the Land have Notice of the Lease of Ejectment although he be but an under Tenant of the Land and although no notice thereof is given to the upper Tenant or to the owner of the Land whose title is concerned Hill 23. Car. B. r. Pasc 24. Car. B. r. For the possession of the Land is onely recoverable in this Action and that doth chiefely concern the Tenant in possession of it A Clerk of Commissioners of Sewers is such a Clerk as the Law takes Notice of Hill 23. Car. B. r. For he is an Officer appointed by Act of Parliament Q. If the Panel of the Jury Impanelled to try a cause be returned and be afterward altered or changed before the tryal the other party ought to have Notice of it otherwise it is a surprizal of the party Pasc 24. Car. B. r. If the Plaintiff give Notice to the Defendant for a tryal and there is no Jury returned to try the cause so that the cause cannot be tryed at the day appointed if the Plaintiff will afterwards try his cause he must give the Defendant new Notice of this tryal Pasc
Car. B. r. And the party that arrested him had been also punished had he not pleaded that he knew not that the party came about his business depending in the Court. One may have a Priviledge in the Land of another by prescription although he hath no title to the Freehold or soil Pasc 23. Car. B. r. For although he now have it by prescription it might arise originally by grant and whatsoever lies in grant may be claimed by prescription One that is Priviledged in this Court ought not thereby to claim his Priviledge to have a tryal at the Bar for to try the title of Lands which he claims in reremainder Trin. 23. Car. B. r. For it is incertain whether the remainder may fall whilst he continues a Priviledged person and for the present he claims no present interest in the Lands Nay though he had a present claim to them yet he ought not to be so Priviledged if the Lands in question be not of a great value or else the title very difficult to be tryed and in such cases any other person though not Priviledged may have a tryal at the Bar. A Priviledged person shall not be allowed his Priviledge upon a motion for it to the Cours but he must appear and plead his Priviledge and upon his pleading it he shall be allowed it Mich. 23. Car. B. r. A Philisers Clerk did claim to be Priviledged in this Court but was denyed it Mich. 23. Car. For though the master may be Priviledged yet the Court takes no notice of the servant The Lord Major of the City of London is Priviledged from all Actions during his Maioralty in regard of his Office except it be for Felony or Treason or Actions which concern Free-hold Pasc 24. Car. B. r. For these are matters of a high nature and it much concerns the Publicke to have speedy Justice to be done in them A Member of Parliament is Priviledged as well in his Lands and goods as in his person By Rolle Chief Justice Mich. 24. Car. B. r. In the Case of the Lord Moon for by being disturbed in any of them he is hindred in serving of the Commonwealth An Atturney of this Court may Plead his Priviledge here after he hath made his defence in the cause in another Court. Pasc 1650. B. S. 4. Maii. For his pleading there doth not take away his Priviledge here but doth onely dispence with it for that time The wife of an Atturney of this Court cannot claim her Priviledge as his wife for the Priviledge is inseperabley annexed unto his person Pasc 1650. B. S. 7. Maii. But if she be arrested her husband must put in Bail for her An Atturney of this Court that is sued as an Executor is not to be Priviledged for he is sued in the right of the Testator and not in his own right Pasc 1650. B. S. 7. Maii. The Prayer of Priviledge is not properly a plea for a Priviledged person did anciently demand his Priviledge by Writ but of latter times the party hath been admitted to his Priviledge upon his prayer to the Court. By Latch Apprentise 1654. B. S. Party and Privy Where one desires to be made a party to defend the title of the Land in question in an ejectione firmae the Court will grant it so that he will confess Lease Entry and Ouster Pasc 23. Car. B. r. In Prince and Warners Case 2. Maii. 1648. But now that rule is enlarged for he must now confess Lease Entry and actual Ouster and must not except against the Jury for want of Hundreders but insist onely upon the tryal of the title and if at the tryal he do not all this then Judgement is to be entred against the Lessors owne ejector Purchase An Alien cannot purchase Lands in England because by this means the Realm would be impoverished by transporting the treasure out of the Realm into foreign Countries and by putting thereby part of the Lands of this Realm that is to say the Lands Purchased by the Alien under the power of a foreign prince Pasc 23. Car. B. r. Praescriptions One cannot prescribe to have two several wayes by one joynt Prescription but he must make several Prescriptions for them Trin. 23. Car. B. r. Two Tenants in Common cannot Prescribe for one Warrein Trin. 23. Car. B. r. That is severally for they cannot both have it severally A Copy-holder for life cannot Prescribe against his Lord by reason of his Copy-hold but a Copy-holder in Fee may Prescribe for he holds his Copy-hold in the nature of an inheritance Mich. 6. Nov. B. S. 1650. Parish A Parish may comprise many Vills within it Hill 23 Car. B. r. 24. Car. Pasc Yet generally a Parish shall not be accounted to have any more then one Vill in it except the contrary be shewed Hill 23. Car. B. r. It shall not be intended that there is more then one Parish in a City except the contrary be made to appear Trin. 23. Car. B. r. For some Cities have but one Parish If the father of poor children leave the Parish and leave his children in the Parish if the children have a Grandfather in the Parish that is able to keep them the Parish is not bound to maintain them but the Grandfather Mich. 24. Car. B. r. If a High-way lye within a Parish the Parish within which it lyeth is bound to repair it of common right if it do not appear that some other persons are bound by Law to repaire it Mich. 1650. B. S. 24. Oct. For it shall be intended that the Parishioners where it lyes have the greatest benefit of it and do make the most use of it Presentation If the King do present to a Church by Laps where he ought to present pleno jure and as Patron of the Church such a Presentation is not good Hill 23. Car. B. r. For the King is deceived in his grant The King may present to a Church by his letter sent to the Ordinary to institute and induct such an one his Clerk to the Living Mich. 1649. B. S. Q. Whether he may do it by Paroll and it seems to me he may for a letter is but a signification of his pleasure which he may as well signifie by word as by writting Principal and Accessory One that is present and aiding to the stabbing of another is not a Principal but only an Accessory to the stabbing within the Act of 1. Jac. that made stabbing to be murder Hill 23. Car. B. r. Proof Although a record of a thing be lost yet the matter may be proved by circumstances to a Jury Pasc 24. Car. B. r. For the right doth not wholly depend upon the Record but a Record is to make the right more clearly appear and to preserve the memory of it to posterity If a Deed which is to be given in evidence at a tryal be enrolled there needeth no other proof of the Deed then to shew the endorsement of the Enrollment Mich. 1649. B. S. For
open the Record unto the Jury and prove the Lease of Ejectment and cause it to he read and then open the Plaintiffs title and if no evidence be given for the Defendant the Jury find for the Plaintiff and give him dammages and costs of Sute 1654. B. S. If the Jury find a matter specially and do conclude a thing which can not stand and agree with their finding the conclusion is idle and shall be taken to signifie nothing By Rolle Chief Justice 1654. B. S. For the Verdict was perfect without the conclusision and therefore an idle and impertinent thing shall not vitiate a good Verdict The Jury may find a matter of Record if it be very ancient or if the Record be embezeled or cannot be found upon search made for it notwithstanding what is held in Scholasticas case to the contrary although the Record be not shewed to the Jury By Rolle Chief Justice Valuation A Jewel is not Valuable but according to the Valuation of the owner of it and is very incertain Hill 21. Car. B. r. Q. Tamen For it seems there is a certain Value for Pearls and Diamonds amongst the Merchant Jewellers according to their weight bigness and luster If one declare in an Action of Trespass for the taking away of live cattel he ought to say that he took away his cattel pretii so much but if he declare for taking away of things without life he ought to say ad valentiam of so much Mich. 1649. B. S. Q. Differentiam inter pretium valentiam or price and value Vse A Use and a Trust were all one at the Common Law and did both rest in privity but are now distinguished by the Statute of 27. H. 8. Mich. 23. Car. B. r. The limitation of a Use was at the Common Law but a matter in equity and the party concerned was onely relievable upon it in Chancery Mich. 22. Car. B. r. Feoffments to Uses have the same acception as Deeds at the Common Law have and are not to be interpreted as Wills are Mich. 23. Car. B. r. It is all one whether a Use be raised by way of Covenant or by way of Feoffment Mich. 24. Car. B. r. Privity of estate and confidence in the party are the two great pillars by which Uses are supported Pasc 1650. B. S. 18. Maii. Vsury Where there is not a Usurious contract preceding although he that lendeth money do take more then eight pound per annum per centum upon a just computing of the moneys received by him whether it fall out by the miscasting of the parties or by the mistake of the Scrivener this is not Usury forbidden and punishable by the Statute Trin. 22 Car. B. r. Threescore pounds was reserved payable upon a Morgage of Lands for three years payable at every six moneths by equal portions whereas the whole Use money for three years for the moneys lent upon the Morgage according to the Statute came but in the whole to sixty pounds and yet this adjudged to be no Usurious contract Mich. 23. Car. B. r. Voide and Voideable A thing is Voide which is done against Law at the very time of the doing of it and such a thing done shall binde no person but a thing which is only voidable and not absolutely void is a thing which he that did it ought not to have done it yet when it is done he that did it cannot avoid it but it may be made void by his Heir c. 21. Car. B. r. A Lease which is only Voidable must be made Voide by re-entry but where a Lease is absolutely voide there needs no re-entry 22. Car. B. r. Vill. The Constable of one Vill cannot execute his Office in another Vill. 24. Car. B. r. For every Vill hath a particular Constable or Officer and have confined power to their severall limits There is an antient Book called Liber Villarum wherein is contained all the Vills and Parishes in England Pasc 24. Car. B. r. This Book I take it is in the Exchequer Variance If there do uppear to be a materiall variance tween the matter pleaded and the manner of the pleading of it this is not a good Plea Pasc 24. Car. B. r. View The Court will grant that the Jury shall view the thing in question for them to try if they doubt of it if the Plaintiff and Defendant will consent unto it otherwise not 15. Nov Mich. 1650. B. S. But the Jury must find without a View according to the light they have received from the evidence as their consciences shall direct them Warden of a Church or Church-Warden A Church-Warden is a Church-Warden although he do not take an Oath for the Oath was only enjoyned him by the Bishop of the Diocess by an usurped authority for he is an Officer whereof the Common Law takes notice and was so before such an Oath was imposed upon him Mich. 22. Car. B. r. Waste If Waste be done upon Lands which are let for Term of years or for life by one against whom the Lessee can have no remedy in Law for committing this Waste the Lessee is not punishable by the Lessor for this Waste except there be a special covenant in the Lease that he shall not commit or suffer Waste to be done Mich. 23. Car. B. r. So that a special covenant of the party doth binde him where by the Law he was not bound A Foreign enemy that invades the Land and makes destruction in Lands and Houses is such an one as the Lessee can by Law have no remedy against for Waste done by him If Timber Trees be growing in the Hedges of a Field or close let for years or life and the Lessee cuts them down the Field shall not be forfeited in an Action of Waste brought against the Lessee but if the Trees cut did grow scatteringly throughout the field or close the whole field or close is forfeited by cutting them down By German Justice Pasc 1650. B. S. 17. Junii Q. Withernam Cattel which are taken in Withernam ad valentiam that is to the value of the cattel that were first distrained and so detained that the Sheriff cannot execute the Replevin brought for them is to be understood not of the number of the cattel first distrained but according to their full worth and value 1651. B. S. For else he that brings the Repliven and Withernam will be deprived of his satisfaction he ought to have in case the distress were not lawfully taken Warranty If one Warrant a horse or any other thing sold after the time of the sale of it such a Warranty is not good to bind the party that made the Warranty but the Warranty must be made at the time of the sale and then it is binding because it is part of the contract Pasc 1652. B. S. Writ A Writ may be either a Mandatory Writ or it may be a remedial Writ a Mandatory Writ is a Writ which is directed unto the Cinque