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 Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken
find it if they see cause to the contrary and that in the case at the barr the Action might be as well grounded upon the scandal which grew to the party who was Endicted as upon the trouble which might have befallen him by reason of the preferring the bill against him Hellena Pasc 23 Car. B. r. AN Action upon the Case was brought for these words Arrest of Iudgement in an Action upon the Case Hellena is a great Witch and a Verdict found for the Plaintiff It was moved to stay Iudgement because the words were not Actionable for they did not shew that the Plaintiff had bewitched any thing or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft Iudgement was hereupon stayed VVilliamson against Henley Pasc 23 Car. Banc. Reg. Trin. 21 Car. rot 362. AN Action of Debt was brought upon an obligation Arrest of Iudgement in Debt upon an obligation the condition was that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money but if he sold them not that then he should deliver an obligation to the Plaintiff for the payment of a certain sum of money therein expressed at a certain day therein limited and for non performance of the condition is the Acion brought The Plaintiff obtains a Verdict the Defendant moves in Arrest of Iudgement Time that he ought to have convenient time for doing of the things expressed in the condition and that it appears not by the Record that he had convenient time and so there is no breach of the condition But the Court held that the time between the date of the obligation and the bringing of the Action was a conveninent time and that there being a second thing to be performed in case the former were not done that therefore that former thing ought to be done in some reasonable time elce the party would be too much prejudiced by staying to have the second thing performed and therefore ruled that Iudgement should be entred without better matter should be shewed Savages Case Pasc 23 Car. B. R. SAvage was Endicted for forging and publishing of Letters of credence to gather money Error upon a Judgement upon an Endictment and was convicted and Iudgement given against him upon his own confession and 100 l. fine set upon him et quod capiatur Exceptions were taken to this Iudgement 1. That it did not appear wher he received any money by virtue of these counterfeit Letters nor at what time But the Court answered that the substance of the offence for which he was Endicted was Endictment the forging and publishing of the Letters and not the collecting of the money for though he had not collected a penny yet the Endictment was good A second exception was that the Endictment did not say quod Counterfecit falso But the Court held that the word Counterfecit necessarily implyed in it the word falso and so not material whether falso were expressed or omitted 3ly It was objected that the party was committed before he was convicted But to this the Court answered Conviction that he was committed upon his own confession which is a conviction in Law and the Iudgement held good and affirmed Needler and Guest Pasc 23 Car. Banc. Reg. Entred Trin 1649. rot NEedler brings an Action of Covenant against Guest Artest of Iudgement in a breach of Covenant upon Articles amongst which one was to allow such a sum of money to an under Clerk in the six Clerks Office by the sheet for every quire of paper he should writein copying and engrossing of bills answers c. as was expressed in the said Articles and upon this Needler obtains a verdict against Guest In Arrest of Iudgement divers exceptions were taken and over-ruled but one was insisted upon which was this that there was more found in the breach of the Covenant assigned then was contained in the Covenant it self for it was found that he had not payed for 72 sheets which was 5 quire and a half and so damages were given for more than ought to be Breach for the Covenant was to pay so much the quire and mentions not any half Damages and for this the Iudgement was stayed for the Court said that the Law would not supply a casus omissus to bring it within the Covenant to ground a breach thereupon Supply what ever the intent of the partyes was that were parties to the Articles VVhitley and Fawsett Pasc 23 Car. Banc. reg VVHitley brings an Action of Trover Action of Proven for distraining selling his Cattel and Conversion against Fawsett for taking his Cattel by way of distress and selling them by virtue of a warrant of Commissioners of Sewers for not paying of a tax set by them towards the reparation of Sea walls the Defendant pleads all the speciall matter by way of justification the Plaintiff demurrs to this Plea and upon the demurrer takes these exceptions to it 1. To the setting forth of the Commission in that he shews not that three of the Commissioners were of the quorum The 2d exception was that in his Plea he had not sâ—t forth the Authority of the Commissioners To that the Court answered it was not necessary 3ly That the Plea was but argumentative which makes it naught 4ly It appears that there are 800. Acres of Land which are in the hands of the King Tax which are not taxed as by law they ought and so the tax is unjust because by the not taxing of them a greater burden was laid upon the rest of the Land than of right ought to be and this the Court held a good exception and said that the Kings Lands are taxable by the Statute 5ly The Statute is not pleaded as it ought to be 6ly It doth not expresse that Whitley in whose occupation the Lands are that are taxed is the Assignee to Lynsee the owner of the Lands but he may be a meer stranger and so not taxable nor his beasts to be sold 7ly It is not set forth that he shewed his warrant before he distrained as he ought to do Distresse In this case the Court first said that one may distrain and sell the Cattel of the owner of the Land taxed or his Assignee for non payment thereof Sale but doubted whether a strangers Cattel might be distrained and sold Roll Iustice took these Exceptions to the Plea 1. Plea That the Plea did not set forth the limits of the Commission as it ought to do and was therefore ill 2ly He said the Plea ought to have shewed that three of the Commissioners were of the quorum 3ly That it did not appear by the Plea that the Lands taxed where the distresse was made are within the Level to be taxed by the Commissioners 4ly The Tax is of the Land of such an one and his Assignes and this is
Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in Norwitch and the Error Assigned was Error to reverse a Iudgment in Norwitch that there did but five of the Iury empanelled appear at the tryal and yet a Verdict was given and Iudgement thereupon The Court said that a Corporation cannot grant a tales neither if they could doth it here appear that there was a tales granted and therefore reversed the Iudgement Sir VVilliam Bronker Pasc 23 Car. Banc. Reg. SIr William Bronker was brought before a Iustice of Peace upon an information made Habeas corpus for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice the Iustice requires him to find sureties for his good behaviour and upon his refusal commits him to Prison Sir William Bronker brings his habeas corpus in this Court and upon the retorn this matter appear'd the Prisoner prayes by his councell to be delivered because there appeared no matter sufficient upon the retorn why he should be committed but because the Gâ—oler desired time to amend the retorn the Court granted it and would not deliver the Prisoner but took vail for his appearance viz. the Earl of Dover Good behaviour and Earl of Chesterfield And the Court then said that a Iustice of Peace cannot bind one to the good behaviour upon a general information or commit him to Prison for refusing to find suretyes for his good behaviour upon such information Imprisonment VVroath and Elseye Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1224. AN Action of Debt was brought against Elseye an under Sheriff by Wroath the high Sheriff upon a bond given him to save him harmlesse Demurer to a plea in Debt upon an obligation c. the Defendant pleads that he hath saved him harmlesse to this the Plaintiff demurs and held a good demurrer for he ought to have pleaded non damnificatus and not generally that he hath saved him harmlesse for that he may do in many things and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse The rule was to shew cause why Iudgment should not be given for the Plaintiff VVhite Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action on the Case brought by an Atturney for these words spoken of him Error to revâ—rse a Iudgment in an Action on the Case for words Thomas White is a perjured Knave and a suborned Knave A Writ of Error was brought and divers exceptions taken but the principal were two 1. That the words aâ—â— not well laid for they are adjective words and so not positive enough to ground an Action 2. The words are not Actionable because it is not declared that the party of whom they were spoken was of any Trade or had any office But Bacon Iustice over-ruled all the exceptions and ordered cause to be shewn next day why the Iudgement should not be affirmed The Case of one Nicholas and Webb was afterward cited Case where Iudgement was given in the Common pleas for calling an Atturney Knave which Iudgement was said to be afterwards affirmed in the Kings bench 12 Car. Trin. rot 102. Saunderson and Martin Pasc 23 Car. Banc. Reg. Trin. 22 Car. rot 867. A Iudgement was given in an Action of Debt upon an obligation Error to reverse a Iudgment in Debt to perform such a promise made by the Obligor to the Obligee and a Writ of Error was brought to reverse this Iudgement The Error assigned was that the breach of the promise was not well assigned for it did not appear when this breach of promise was Bacon Iustice The breach of promise is the sole cause of the Action and it appears not to the Court when that was and for this he reversed the Iudgement Paine and Skeltrom Hill 23 Car. rot 740. AN Action of Debt was brought upon an obligation Demurrer a Plea in Debt upon an Obligation the condition was that Skeltrom the Defendant with his Wife should appear at the Marshals Court and for not appearing according to the condition was the Action brought Skeltrom appears and pleads that at the time of the obligation he was solus et innuptus To this Plea the Plaintiff demurrs Rolle Iustice said this Plea was not the same with ne unques loyalment accouple for one extended to a feme de facto and the other to a feme de jure The Court then advised of the Plea but Trin 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff Stoughton and Day Pasc 23 Car. Banc. Reg. SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs Demurrer upon a Declaration in Debt upon an Obligation upon an obligation with a condition to save the under-sheriff harmlesse in executing of processes and other things contained in the condition and Assignes the breach of the condition to be that the Bailiff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands To this declaration the Defendant demurs and shews for cause 1. That the warrant to him directed by the undersheriff was made out of the County where he was undersheriff and so could not be said his warrant as under-sheriff of that County 2. It is not alleged that the mannour of Addinson where he was by the warrant to levy the issues is within the Hundred where the Bailiff hath Iurisdiction Warrant And this the Court held to be a good exception and said that the breach Assigned is not shewed to be within the Condition of the Obligation because the Baily cannot execute a precept out of the Hundred where he is Bailiff and Thereupon the rule was that the Plaintiff Nil capiat per billam if cause were not shewn Tuesday following Cook and Fincham Pasc 23 Car. Banc. Reg. A Iudgement was given for Cook For vacating a Writ of Execution upon an information upon a Statute exhibited by him on the behalf of the King and himself where the King was to have ten pounds of the penalty recovered Cook takes out an Execution upon this Iudgement to levy the whole sum of money recovered to himself as appeared to the Secondary upon examination of the matter referred to him Upon this the Court held the writ of Execution to be ill Execution because it was entire for the whole sum recovered to the party whereas 10 l. was due to the King and ordered a new Writ of Execution and to stay the money in Court till further advice of the matter taken Clark and Pew Pasc 23 Car. Banc Reg. AN Action of Trover and Conversion was brought by Clark Arrest of Iudgement in an Action upon the Case against Pew and his wife and the Declaration was that
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
Hales on the other side Argued that the King shall have the trust and laid these two grounds 1. That there may be a trust raised upon the surrender of a Copyhold and 2ly that the surrender settles the trust in the Alien and cited 11 H. 4.26 and he said these things were considerable 1. Whether the King shall have any thing and what he shall have 2. Whether he shall have a use for an Alien at the Common law or a trust 3. Whether he shall have a trust raised out of a use And for the first he said that the trust was not a thing meerly in Action but an hereditament and partly in possession and cited Cooks Institutes 469. and said the reason why an Alien may not purchase lands is because that this Kingdom might not be impoverished thereby by transporting the revenues of the land into a forein Country and putting a part of it under the subjection of a forein Prince and the same reason comes to the case in question and therefore is not to be suffered and every Alien that purchaseth is said to purchase to the use of the King and so shall it be in this case and although a thing meerly in Action is not transferable to a Common person yet is it transferrable to the King but this case is stronger for the King for here is not a thing meerly in Action but mixed with an interest and it is no reason but that the law which was made to meet with the subtility of such Alien purchasors should take place here and it cannot be said that that law was made to give remedy to the King for that he had before and a Feoffment now made in trust for an Alien is all one with a use at the Common law and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited and he held Daccombe that there is no difference between a trust raised out of a Copyhold and other lands and if he hath an interest here in the profits the seisure is good though he have no interest in the land for the land may be seised by the profits 5 H. 5. fol. 9. Title But Rolle Iustice demanded of Hales how the King shall be intitled to the profits of the land where he is not intitled to the land it self and said that the Chancery cannot compell one to Execute a trust for an Alien Chancery and that a trust was invented only to avoid the Statute of uses and said that a trust is not a thing in Action Trust but may be an inheritance or a Chatell as the case falls out Adjourned postea White and Pynder Pasc 23 Car. Banc. reg Mich. 22 Car. rot 440. IN an Action of Trover and Conversion Demurrer upon an evidence there was a demurrer joyned upon the evidence and thereupon the Court directed the Iury to find damages for the Plaintiff if upon the argument of the demurrer the law should be adjudged for him and then the parties desired the Iury might be discharged and referred the matter to the Iudges to determine the law upon the evidence In this case Rolle Iustice took this difference to wit between pleading of a Record Record and giving a Record in evidence to a Iury. Plea If it be pleaded it must be sub pede sigilli or else the Iudges cannot judge of it But if it be given in evidence though it be not sub pede sigilli the Iury may find it Evidence if they have other good matter of inducement to prove it And the partyes in this case were advised by the Court for their own expedition to let there to be issued a venire facias de novo and to waive the demurrer upon the evidence because it was not good nor could bring the matter in question before them that they might determine it for one party saith there is a writ and the other saith there is not a writ which is bare matter of fact and not for us to determine but for a Iury and the demurrer ought to have been whether the writ be good or whether it be bad and should have admitted that there was a writ tyel quel and then had the whole matter come legally before us to wit whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not But the Court will advise Hamond and Kingsmill Pasc 23 Car. Banc. Reg. HAmond brings an Action upon the case against Kingsmill for these words Arrest of Iudgement in an Action of the Case for words spoken of him in relation as he is a Iustice of peace to wit Mr. Hamond did put in of his own head these words in an examination taken by him viz. I. S. did steal twenty sheep of such a mans and for speaking these other words of him Hamond was a debauched man and is not fit to be a Iustice of peace and hath a verdict against the defendant who moves in Arrest of Iudgement that neither the former nor the latter words were actionable for for the former words that he did of his own head put in words into the examination are words uncertain and dubious what is meant by them whether that he added any thing of his own invention to the examination which was not confessed by the examinant or that he only put the substance of the matter confessed into words of his own endicting and if he did no more that was justifiable and so it shall be taken here rather than in a worse and strained construction to ground an Action upon and for the second words to say that he was a debauched man and not worthy to be a Iustice of peace they cannot be scandalous for they are spoken of him in relation to what he was in time past before he was a Iustice of peace and not as he was at the time of the speaking and it is no scandall to say a man hath been debauched for it may be he is now otherwayes But for the first words it was answered by the Councel on the other side that they were actionable for they must be taken according to Common construction viz. that he had added not only words of his own invention to the examination but the matter it self expressed in those words which was not confessed by the examinant And as to the latter words it was answered they were also Actionable and a Case was cited where Iudgement was given against the Defendant for saying of one that he was a corrupt Iudge Rolle Iustice was of opinion Case that the first words were Actionable but not the second for words saith he ought to be taken according to usuall and Common construction though they are not to be strained for otherwise a man may be abused by subtility and shall have no remedy and Iudgement may be given
here for the first words Iudgement and not for the second the Damages being severall but if the Damages had been intire there if Iudgement could not be given for both the words it cannot be given at all Bacon Iustice much to the same purpose as Rolle and said that the first words shall be meant that he added words of his own invention without any instruction of the party for oftentimes dubious words shall be taken in the worse sense upon consideration of the Circumstances that accompany them and he was also of opinion that the second words were actionable and are as scandalous as the former Iudgement was given for the former words and for the latter the Court would advise Barrett 23 Car. Banc. Reg. AN Action of Trespasse was brought for digging in his land Arrest of Iudgement in Trespass and carrying away a certain number of loads of earth and a Verdict was for the Plaintiff It was moved in arrest of Iudgement that the declaration was incertain for the Trespasse is laid to be done in land lying in divers Towns 2ly It is not shewed what kind of soil the earth was that was caryed away but both the exceptions were over-ruled and Iudgement ruled to be entred nisi causa c. Conisby and Fairfax Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action of Trespass in the Court of Owse-bridge in York Error to reverse a Iudgement in Trespasse a writ of Error was brought in this court to reverse the Iudgement many exceptions not material at all were taken and many others that were helped by the Verdict but the three chief Exceptions were 1. The Damages were declared to be ad valentiam quingint librar instead of quingent for there is no such word as quingint to express any number for if it be meant to express Fifty it ought to be quinquagint but quingent signifies 500. 2ly The Venire was directed Balivis de Wapentagio whereas there is no such word for the word to express a Wapentake is Wapentachium so that it ought to be de Wapentachio and not Wapentagio 3ly The Venire is Venire Venire facias de baliva and sayes not what Baliwick which is uncertain and it cannot be known whither it extends and upon these Exceptions the Iudgement was ruled to be reversed except better matter shewn Saturday following Pasc 23 Car. Banc Reg. VPon a motion for quashing an Endictmet against a Baker For quashing an Endictment for using the Trade of a Baker these Exceptions were taken 1. He is indicted for using facultatem pistoris and doth not say panis humani 2ly It is for baking panis tritici Anglice Houshold bread whereas it signifies only bread made of Wheat and not Houshold bread for that may be made of other corn 3ly For baking panis Assis without a dash for panis Assisae Vpon these Exceptions it was quashed Pasc 23 Car. Banc. Reg. VPon a motion for quashing an Endictment against one for apprehending I S. unprisoning him For quashing an Endictment for aresting and imprisoning one these Exceptions were taken to it 1. It sayes that he apprehended imprisoned the party without a Warrant whereas it ought to have been absque aliqua rationabili causa for in some Cases a man may be apprehended and imprisoned without a Warrant but in no Case without a reasonable cause 2ly The Endictment is that he did not shew him the cause why he apprehended and imprisoned the party and that he is not bound to do and yet the party may be lawfully imprisoned 3ly The Endictment doth not say that he apprehended and imprisoned the party falsely as it ought to have done Vpon these Exceptions it was quashed Drake and VVhitacre 23 Car. Banc. Reg. Hil. 22 Car. Rot. 1318. AN Action upon the Case was brought Arest of Iudgment in an Action upon the Case for words and a Verdict found for the Plaintiff for these words Margaret Whitacre viz. meaning the Plaintiff did steal my Wood and I will send her to Bridewell It was moved in arrest of Iudgement that the words were not actionable for doubtfull words as these are ought to be taken in mitiori sensu and Wood here may be understood standing Wood and not Wood cut down and so it could not be Theft but a Trespass on the other side it was answered that Wood shall here be understood Wood cut down and not standing and being coupled with the words Margaret VVhitacre is a Thief which are scandalous words they shall be interpreted equally scandalous Ayre Higgins his Case was cited to prove it where it was adjudged that these words He is a thief and hath stollen my Corn shall be understood of Corn cut down and not standing and therefore are actionable Roll Justice said it was a strong Case that the action will lye Case Notwithstanding Iudgement was arested till the other should move This was again moved Trin. 23 Car. and the Court held that the first words alone were actionable but whether coupled with the other they were actionable the Court was divided viz. Bacon a gain the Action and Rolls for it Pasc 23 Car. Banc. Reg IN an Action of Trover and Conversion and a verdict for the Plaintiff Arest of Iudgment in Trover and Conversion it was moved in arrest of Iudgement that the Plaintiff did declare for Books for Stockings found converted and doth not shew what Books viz. whether English or Latine or what other Language nor whether Law books Divinity Physick or of any other Subject and because he doth not declare what sort of Stockings they were whether wollen wosted or silk c. But the Court over-ruled the Exceptions and said that Books were not things of divers species Species be they of what Language or subject they may be of neither the Stockings for were they silk or wollen or wosted they were but Stockings and so ruled Iudgement to be entred The King and Place Pasc 23 car B. R. PLace was endicted before the Lord Finch and Iustice Crawley for speaking words against the Queen Mother of France Error upon a Iudgement given upon an Endictment for words the words were these The Queen Mother is the Whore of Babylon she is a Whore and hath had a Bastard upon this Endictment jugement was given against the Defendant A Writ of Error was brought in this Court to reverse the iudgement The Errors assigned were 1. That the proceedings upon this Endictment were too speedy and so illegal for the whole proceedings upon it were acted in one day 2ly The Endictment lyes not for it is founded upon the Statute of Scandalum magnatum Scandalum magnatum and here can be no such great Scandal for that is for words spoken of a Peer of the Realm and the Queen Mother is not so 3ly There is no Capiatur upon the Roll as it ought to have been the Defendant being not in Prison at
the time of the iudgement given 4ly The iudgement is that the Defendant shall be imprisoned for a year without bail or mainprise whereas he ought to be delivered upon paying his Fine Adjourned to the next Term. Pasc 23 Car. Banc. Reg. AN action of Debt was brought upon a Bill penall Arest of Judgment in Debt upon a Bill penal and a verdict for the Plaintiff It was moved in arrest of iudgement That the Plaintiff hath not shewed that the Defendant did not pay the mony at the day limited in the Bill but only says non solvit c. 2ly He declares that the Defendant was bound to pay such a sum legalis monetae and doth not say Angliae but the Court over-ruled both the exceptions and ruled the Plaintiff to take his Iudgement Pasc 23 Car. Banc. Reg. A Motion was made by one Town against another neighbour bordering Town For a Writ against a vill to make them keep their Fences Scire facias Plea for a Writ to make them repair their fences And it was granted but it was said by the Court that the Writ so granted should be but in the nature of a Scire facias refornable in this Court to enable them to plead to it and not to compell them to do it without being admitted to plead Notwithstanding the opinion of Noy Attorny General and he old Record of Ed. the 2ds time produced heretofore by him to strengthen it Nota. Trin. 23 Car. Banc. Reg. A Motion was made upon an Affidavit to stay Process out of this Court against the party for a Deodand To stay Pracess for a Deodand because he had payed three pound for it to the Kings use to Sub-Deputy Almoner upon a composition made with him Bacon Iustice Certificate Notice procure the General Deputy Almoner to acknowledge it and procure his Certificate to the Court for of the Sub-Deputy we can take no notice Trin. 23 Car. Banc. Reg. THe Court was moved to quash a Endictment of forcible entry upon these Exceptions To quash an Endictment of forcible Entry 1. There is no addition of the County where the party dwells that made the forcible entry as there ought to be by the Statute of 1. H. 5. Addition and without this addition no Process can be awarded to out-law the party for it must be directed unto the County where he dwells 2ly There is no County expressed where the vill lies in which the force was committed Vpon these Exceptions it was quashed Trin. 23 Car. Banc Reg AN Endictment was preferred 5 years before To discharge one endicted for Recusancy against Count Arundel for recusancy It was now moved that he would plead Conformity but in regard that he must plead it by Certificate under the hand and seal of the Bishop of the Dioces and Bishops were now taken away by the Parliament Certificate Conformity he was disabled to do it but had a Certificate under the hands and seals of the Minister and Church-wardens of the Parish where he dwelt upon Oath testifying his Conformity and thereupon it was prayed he might be discharged But the Court answered that there is another remedy given by the Statute which he might have followed though the former was taken away to wit to conform at the Sessions and it was his own fault that he hath lost that advantage by removing the Endictment hither by Certiorari and therefore we will not at present deliver him but will consider of the Statute and stay the Process in the mean time Trin. 23 Car. Banc. Reg. IT was moved to the Court that there was an Execution duly issued out of this Court and returnable here this Term Against an Injunction out of the Chancery to stay execution and that since it issued forth the Defendant had obtained an Injunction out of the Chancery to stop the execution The Court answered that all the Iudges were agreed that an Injunction out of the Chancery lyes not after a Iudgement be the Bill put in before or after the Iudgment it matters not but if after a Iudgement there be a Writ of Error brought to reverse it and pending the Writ an Injunction be obtained Q. whether it lye or no by the Reporter Injunction Bruer and Sowthwell Trin. 23 Carol. BRuer brought an action upon the Case upon an Assumpsit to pay so much mony for Currance sold unto him discomputando for four Months Arest of Judgment in an action upon the Case The Defendant demurs to the Declaration for the incertainty of it because it is discomputando for four Months and expresseth not for how much he should discount and so there can be no certain dammages given and upon this it was stayed till the other party move Whiteacre and Hillwell Trin. 23 Car. Banc. Reg. Hill 22 Car. rot 1318. VPon a Verdict had for the Plaintiff in an action upon the Case for these words Magaret Whitacre is a thief hath stollen my Wood Action on the Case for words and I will send her to Bridewell It was again by the Plaintiff moved for Iudgement because the words were actionable and shall be meant of Wood cut down not standing and it was said though the first words should in themselves be doubtfull yet are they made certain by the words that are coupled with them But Bacon Iustice denied it and said that Bridewell is a Prison for Correction and not the Sheriffs Prison for felons and that one may be sent thither although the offence be not felony and that the cutting of Wood standing is to be punished with whipping and so the party may be sent to Bridewell for that offence and said that the last words are explanatory of the former that he meant not the fact charged upon the Plaintiff to be felony but had not the later words been added to explain his meaning the former alone are clearly actionable But Roll Iustice held the words as they are laid to be actionable and cited Hyfords and Stamps Case Trin. 11 Iac. Doleman and Youngs case 5 Car. and Smith and Wards Case 21 Iac. and said that in the Case at Bar that the latter words were cumulative and not interpretative and that where there are expresse precedent words to make one a Thief there ought to be violent words subsequent to give them another interpretation and not words which may be taken by implication as they are in this Case Adjourned VVatson and VVatson Trin. 23. Car. Banc. Reg. Hill 22 Car. rot 1687. AN Action of Debt was brought upon an Obligation with condition to stand to an award Action of Debt for not performing an award The Defendant pleads no Arbitrement made The Plaintiff replyes and sets forth the award and Assigns a breach the Defendant demurs and for cause shews that the award is uncertain and not finall for it is that one of the parties shall pay so much money to the other as shall be due in conscience
Lincoln Admission Iurisdiction Prohibition Proceedings that the cause of Action if any were arose in the body of the County of Lincoln and not within the jurisdiction of the City of Lincoln Hales on the other side said they had admitted the jurisdiction of the Court in that they had not pleaded to it But Roll Iustice said inferiour Courts are limitted in their jurisdictions and ought to be kept in order by prohibitions if they exceed and if they proceed in matters not within their jurisdiction their proceedings are void Adjourned to the next Term. Trin. 23 Car. Banc. Reg. THe Court was moved for a Prohibition to an inferior Court For a prohibition to an inferior Court Admission but on the contrary part it was said that they moved too late for they had admitted the jurisdiction of the Court by pleading and cited 9 H. 7.12 and Fitz. jurisdict 19. Bacon Iustice said it is here in a Court of Common Law and not in the spiritual Court or Admiralty and therefore a Prohibition may be here granted notwithstanding the pleading there Prohibition but had it been the spiritual Court or the Admiralty it had been otherwise But Rolle Iustice said it was all one in the spiritual Court or Admiralty as it is in this case if they exceed their jurisdiction Iurisdiction Yet it is mischeivous to grant a prohibition in this case for thereby many Iudgements will be stopped Therefore the Court would advise to the next Term but stayed nothing Trin. 23 Car. Banc Reg. THe Court was moved that the undersheriff might return a Iury because the Sheriff For the undersheriff to return a Iury. Return Surm se Petigree Attorney and Coroner were of kinn to the Plaintiff the Court thereupon demanded whether they had brought in the surmise and proved the petigree to which they answered They had thereupon they were bid to name some Atturneys of the Country which was done and thereupon a rule made that they should return the Iury. Nota. Trin. 23. Car. Banc Reg. THe Court was moved for a rule to stay proceedings in the Court at Maidston in Kent To stay proceedings gâ—â—â— the Court at 〈…〉 because a supersedeas could not be granted for that nothing erroneous issued out of this Court But the Court answered that a supersedeas might well be granted and so said Hodsden the Secondary although nothing erroneous be issuing out of this Court and Bacon Iustice said that the Writs of the Court are as good and of as much force as the rules of Court Writs Rules and therefore we will make no rule to stay their proceedings but you shall have a supersedeas if you will Person and Dawson Mich. 23 Car. Banc. Reg. AN Action of the Case was brought by Person against Dawson for these words Arrest of Iudgment in an Act on for words your Son innuendo your Son William stole a horse and sold him for ten pounds The Plaintiff hath a Verdict the Defendant moved in Arrest of Iudgement that the words are not actionable because uncertain Case VVords and the innuendo cannot help them and the Iudgement was stayed till the other should move It was afterwrads moved again and the Iudgement stayed and this Term Iudgement given for the plaintiff Mich. 23. Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of usury To quash an Endictment upon the Statute of usury Pursuance The exception taken was that it is not said corrupte agreavit nec accepit and so the Statute is not pursued Roll Iustice said that it is the corrupt receiving and the corrupt contract upon which Endictments are framed upon the old Statute viz. 3. Jac. c. but if the Endictment be framed upon the Statute of 21 Jac. there it ought to be upon the corrupt contract and because this Endictment is framed upon the Statute of 21 Jac. and mentions not the corrupt contract it is not good and therefore let it be quashed Yates against Lyndon Mich. 23 Car. Banc. Reg. MAry Yates brought an Action upon the Case for speaking these words of her Mary Yates is a Sorcerer and a Witch and a white Witch Arrest of judgment in an Act on for words Case Statute Witchcraft she can witch and unwitch and hath a Verdict The Defendant moved in Arrest of Iudgement that the words are not actionable because the Plaintiff is not by the speaking of them brought within the Statute of 21. Jac. against Witch-craft But Roll Iustice doubted whether the word Sorcerer did not bring the Plaintiff within the Statute Yet Iudgement was stayed till the Plaintiff should move Hill the same year it was moved again and the Court adjudged Nil capiat per billam for they held the words not actionable Turner and his VVife Mich. 3 Car. Banc. Reg. TUrner and his Wife brought an Action upon the Case for these words Arrest of Iudgement in an Action for words spoken of the Wife she is a Witch and I will take my oath of it The Plaintiffs had a Verdict The Defendant moves in Arrest of Iudgement that the words were not actionable for to say one is a Witch and to say no more is not actionable and the last words I will take my oath of it do not enlarge the former words VVords The Court arrested Iudgement till the Plaintiff should move Paradine and Jane Mich. 23 Car. Banc. Reg. Hill 22 Car. rot 1178. PAradine brought an Action of Debt for rent due for lands Argument in debt for rent upon a lease for yeares let for years unto Iane the Defendant and declares particularly how much rent was due and for what time The Defendant pleads a special Plea to this effect as to part of the rent for which the Action is brought he confesseth the Action As to the rest he pleads that Prince Rupert an Alien and an Enemy of the King invaded the land with an Army and with divers armed men did enter upon him and did drive away his Cattell and expelled him from the lands let unto him by the Plaintiff and kept him out that he could not enjoy the lands for such a time and demands judgement if for the rent incurre during that time the Plaintiff ought to have his Action Demurrer To this Plea the Plaintiff demurrs and for cause saith that it is neither good in matter nor form The 1. question was whether a Lessee for years ousted by an Army or Aliens can plead it in Barr Plea Debt contract VVâ—st in an Action of Debt brought for rent due upon the Lease And to this it was said that this is an Action of Debt and lyes meerly upon the contract between the partyes and so this collaterall matter pleaded is nothing to the purpose but had it been an Action of wast if the wast had been done by Pr. Rupert and his Soldiers it may be it might have been pleaded to bar the Plaintiff 19.
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
an Executor Devastavit for the Devastavit of the first Executor Roll Iustice the Ecclesiastical-law ought to make a provision against these mischiefs Prohibition otherwise a Prohibition lyes against them Appointed to be argued a gain Tuesday sevennight VVatson and VVatson Mich. 23 Car. Banc. Reg. Hiill 22 Car. rot 1687. VVAtson brought an Action of Debt upon an Obligation against Watson Arest of Judgment in Debt upon an Obligation to stand to an award Award the Condition was to stand to the Award of two Arbitrators or of the Vmpire The Defendant pleads nullum Arbitrium The Plaintiff replies that the Vmpire made the Award The Defendant demurs and shews for cause that the Award was not good for it was incertain and not final on both parts for one party was awarded to pay so much mony to the other as in conscience should be due and no man can say what that is The Court said the Award was insensible And Bacon Iustice said it was a Vicars Award Puliston of Councel with the Plaintiff cited these Books to prove the Award good 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc 4 Iac. Gosnolls case 9 H. 7. and said these cases proved that where an incertainty in an Award may be made certain there the Award is good and so it is in our Case 2ly He said that the Award here is good notwithstanding it be to pay so much mony as shall be due in Conscience Conscience for it shall be meant as is due in Law for Law and Conscience are one and the same But Roll Iustice said that the Award doth not make a finall determination of the matters in controversy betwéen the parties and so it is no Award And Bacon Iustice cited 5 Rep. That an Arbitriment ought to be certain and final and this Award wants both these properties and therefore is not good Fitchet against Wolston Mich. 23 Car. FItchet had a Iudgement against I. S. in an action of Debt Demurrer to a Plea upon a Scire facias against an Administrator Scire facias with a Fieri facias I. S. dies intestate Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator and to take them in execution upon the Iudgement Wolston the Defendant appears to the Scire facias and pleads fully administred The Plaintiff demurs to this Plea and shews for cause that in this Case he should have pleaded non Devastavit and not fully administred 2ly The plea answers not the Writ The Court answered all such processes are only to make the Executors or Administrators to answer Fully administred and therefore fully administred is a good Plea for it is a good answer and it would be dangerous to plead other waies And Roll Iustice said that this being a Scire facias with a Fieri facias according to the new manner of making the Writ it would be dangerous to plead non Devastavit and it hath been adjudged a good plea Non Devastavit to say fully administred in a Scire facias against an Executor but it is better to plead nulla bona devenerunt ad manus Nulla bona with which he could satisfie the Debt since the Scire facias brought But this being a new case it is fit to be argued Therefore let us have Books Finer and Jeffry Mich. 23 Car. Banc. Reg. FIner brings an Action upon the Case against Jeffry and declares Arrest of Iudgement in an Assumpsit that the Defendant did assume and promise unto him that if he would forbear to sue one who had assaulted him and beaten him that he the Defendant would pay the Plaintiff as much mony as he was damnified by the Assault and Battery The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause Consideration 1. That it doth not appear by the Declaration that the Plaintiff had any intention to sue the party for the Assault and Battery and so the Assumpsit in consideration that he would forbear to sue for it is no consideration 2ly He doth not set forth that he gave any notice to the Defendant Notice what dammage◠he had sustained by the Battery But the Court held that the Plaintiff néeded not to allege that he had an intent to sue the party for that the Defendant took notice of when the Assumpsit was made and for the notice what dammages the Plaintiff had sustained the request to perform the Assumpsit implies that sufficiently and so gave judgement for the Plaintiff Dersly and Dersly Mich. 23 Car. Banc. Reg. THree are endicted of Conspiracy and forgerg Arrest of Iudgement upon an Endictment of Forgery and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement and offered these Exceptions 1. The endictment is for a joynt forgery and so one only cannot be guilty but if one be acquitted all must be acquitted 2ly The endictment is for forgery and causing to forge which are two several and different Acts. But to these the Court said nothing But took another Exception namely Conspiracy that the Conspiracy is not found upon which the Endictment is grounded according to the Statute for 2 are acquitted and so there cannot be a Conspiracy in the third person nor in any of them for one cannot conspire alone Bruer and Sowthwell Mich. 23 Car. Banc. Reg. IN this case it was moved again in arrest of Iudgement Arrest of Iudgement in an Action upon an Assumpsit Nudum pactum Consideration upon the exception formerly taken namely that the words in the Declaration discounting for four Months were uncertain and so there is no consideration for the Assumpsit and then it is but nudum pactum Roll Iustice said the Declaration is insufficient for the incertainty for it cannot be known what is meant by the word discounting Yet he said that though part of the Consideration upon which the Assumpsit is grounded be against Law yet if the other part be good and it may be divided the Assumpsit is good notwithstanding Yet we will hear Councel on both parts before the Plaintiff shall have Iudgement Colson and Bedloe Mich. 23 Car. Banc. Reg. Entred Mich. 22 Car. rot 434. COlson brought an Action upon the Case upon an Assumpsit against Bedlore Arrest of Iudgment in an action upon the Case upon an Assumsit and declares that in consideration of so much monys paid by the Plaintiff to the Defendant the Defendant did assume and promise to deliver so many loads of Hay unto him at such a place and for not performing his promise he brings his Action The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement upon these Exceptions 1. The Declaration doth not
set forth Jurisdiction that the place where the promise was made was within the Iurisdiction of the Court which ought to have been because it is the ground of the Action To this Roll Justice answered that it doth not appear that it is out of the Iurisdiction of the Court and it shall not be intended to be so if it be not alleged by the other party A second exception was Intendment Request that there is not a special Request set forth for the Defendant to carry and lay the Hay in the place alleged 3ly The pleading is out of Court for want of a continuance to the Court for the continuance is not to the Court Discontinuance Verdict but to such a day only 4ly The Verdict is informal and shews no cause why dammages are given Roll Iustice to the first exception said that the party ought to have taken advantage in pleading that the cause of Action was out of the Iurisdiction of the Court Pleading and not to move such matter in arrest of Iudgement for it is improper But the Court ruled the Plaintiff to shew cause why Iudgement should not be arrested upon the third exception Afterward the same Term judgement was given nil capiat per billam against the Plaintiff for the discontinuance in the Process Tentch and Cletheroe Mich. 23 Car. Banc. Reg. Pasc 22 Car. rot 332. TEntch brings an Action of Covenant against Cletheroe Error to reverse a Judgement in an Action of Covenant declares that the Defendant had covenanted with him to pay such a sum of mony into the Exchequer at such a time and for not performing this Covenant he brings his Action The Plaintiff hath a Verdict a Iudgment The Defendant brings his Writ of Error assigns for error that the Plaintif had not set forth in what County the Exchequer is and cites Hobs his case Pasc 8 Car. County and a case 22 Car. C. Banc. That the County is material to be alleged by reason of the Venue 1 E. 4.3 Cooks institut 210.21 H. 6. f. 4. The Court held that the County where the Exchequer was ought to be alleged Exchequer because the Exchequer is transitory and not fixt to one place Venue and so there can be no Venue because it appears not in what County it is And for this cause the Iudgment was reversed Sawyer and Russell Mich. 23 Car. Banc. Reg. SAwyer brought an Action upon the Case for speaking these words of him Thou art a Witch and hast bewitched my Cow Arrest of Iudgment in an Action upon the Case for words VVitch-craft The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement for these reasons 1. Such bewitching as is mentioned in the Declaration is not punishable by the Statute of 1 lac for it comes not within any of the branches of that Statute neither that which speaks of death by Witchcraft nor of the other branch for it is not averred that the Cow was hurt or destroyed by the bewitching and so the party is not punishable Intendment And it shall not be intended to be so for the party shall not be punished by an Endictment by an intention neither shall he be here in this Case And 2ly words ambiguous of this nature shall be taken in mitiori sensu Roll Iustice said that these words VVords Thou hast bewitched my Mothers Milk and Drink have béen adjudged actionable and here is a scandal of the party of whom the words are spoken and the words thou hast bewitched implies hurt done to the thing bewitched and this case differs from an Endictment for an Endictment must be more certain than these words need to be And a violent intendment as here is may bring one within the compass of an Action Therefore let the Plaintiff have his Iudgement if better matter be not shewn Monday next Nevill and Mott. Mich. 23 Car. Banc. Reg. NEvill brought an Action upon the Case against Mott and declared Arest of Iudgment in an action upon the Case for words that the Defendant being in company with him with a Constable did speak thus of the Plaintiff to the Constable There he is take him for I charge him with flat felony and after spoke these words of him also Mr. Nevill hath taken my Sheep with a felonious intent The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that the words are not actionable and cited Poland and Masons case Hob. Rep. and alleged these reasons also 1. Because the words were spoken to a Constable in prosecution of Iustice which shall not be taken hold of by a private person as a particular injury meant to him Averment 2ly It is not said the words were spoken falso malitiose as it ought to have been But to the second Exception Roll Iustice said It is not not necessary to say they were spoken falso malitiose where they appear to be scandalous for there the Action lies well though it be not so expressed and if one charge another with suspition of Felony and speak such words of him if they appear to be maliciously spoken an Action very well lies The rule was for the Plaintiff to take his Iudgement if better cause be not shewed to the contrary King and Hide Mich. 23 Car. Banc. Reg. HIde moved for the quashing of an Endictment taken before Commissioners of Sewers For quashing an Edictment before Commissioners of Sewers wherein he was endicted for a nusance made in the high way by reason of penning of water in the River at his Mill wherby the water over-flowing the Banks did annoy the way and he took this exception to the Endictment that it did not say it was a navigable River But to this Roll Iustice answered it was not necessary to say it was navigable for if it be a common passage for water it is sufficient and lies within the conusance of the Commissioners But Roll took another exception to the Endictment That it sets forth this overflowing of the water to be a nusance to the high way Nusance and for this the party is endicted whereas Commissioniers of Sewers have no power to meddle with such nusances in the way but only with passages by Water And for this cause the Endictment was quashed Monger and Shaterton Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 569. A Writ of Error was brought in this Court to reverse a Iudgement given in the Barrow-Court of Southwark Error to reverse a Iudgement given in the Burrow-Court of Southwark and the Error assigned was that in the Venire facias one of the Iury is called Richardon and in the Habeas Corpora he is called Richardson which are two several names and so it is incertain what the proper name is To this the Councel on the other side said that this fault is helped by the Statute it being after a Verdict But Bacon Iustice said
assignment is of the debt of this man due to the Bankrupt be it more or be it lesse and hath no reference to the accompt and reckoning between them so the Assignment is good though it agree not in the sum with what is justly due and the issue is upon the Assumpsit Issue Admittance and not upon the Assignment for the Assignment is admitted by the Defendant and so not material whether it be an Assignment of the true sum or not Iudgement was given for the Plaintiff Bruer and Sowthwell Mich. 23 Car. Banc. Reg. THe Plaintiff in this Case moved again for judgement Arrest of Iudgement in an Action upon the case upon an Assumpsit notwithstanding what had been formerly spoken to arrest it for though the word discomputando in the Declaration be insensible yet there is enough in the declaration to ground the Action and that is the breach of the Assumpsit assigned to deliver the Currants bought of the Defendant and the word discounting shall not hurt it Bacon Iustice was of the same opinion But Roll Iustice said Assumpsit Contract all the bargain is here set forth upon which the Assumpsit was made and if the bargain be ill the Assumpsit is not good Hales of Councell with the Plaintiff said if part of the bargain be insensible and part not yet a good Assumpsit may be grounded upon that part which is good But Roll said the bargain here is intire and if part of it be not good it is all naught yet he said if part of a bargain be good and part void yet an Action may be brought upon it The rule was That it should be argued again on both parts Seaman against Edwards Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 920. SEaman brings an Action against Edwards Demurrer to a plea pleaded by an Executor Plea Executor and declares against him as Executor of I. S. whereas the truth was that I. S. made 3 others Executors and not the Defendant The Defendant pleads that he is not the same person named in the Will To this plea the Plaintiff demurs and for cause shews that he may be an Executor de son tort demesne though he be not named in the Will and so may be chargeable and therefore he ought to have pleaded ne unques Administred come Executor and of this opinion was the Court and ordered the Defendant to shew cause why Iudgement should not be given against him Iudgement was given for the Plaintiff Dod against Eaton Mich. 23 Car. Banc. Reg. DOd brings an Action upon the Case against Eaton for speaking these words of him thou hast the French Pox Exception to a special verdict the Defendant pleads not guilty the Iury upon this Issue find a special verdict viz. That the Defendant had said thou hast had the French Pox whereupon the Defendants Councell said that the Verdict doth not maintain the words laid in the Declaration and that the words that are found in the verdict are not actionable and so the Plaintiff can have no Iudgement and cited 15 Jac. Nutcombes Case Verdict and the words found are not issuable and so the verdict is imperfect 40 Ass 41. Kelway 6. 18 Ed. 3. fol. 19. Pasc 33 Eliz Banc. Reg. Dame Ratcliffs Case Dyer Sr Iohn Burges Case prove that the verdict is too short Roll Iustice said if the verdict be imperfect there may be a new venire facias Venire de novo and so it is against the Plaintiff for he cannot have Iudgement Panell of Councell with the Plaintiff cited Osborn and Brooks Case that the verdict was for the Plaintiff But Roll Iustice said that the Iury cannot find a thing that is not within the Declaration to maintain the Declaration for they ought to hold themselves to the issue and that they have not here done and therefore the verdict is imperfect and there must be a new venire facias to try the issue again for Iudgement cannot be given upon this verdict for they do not find that he spake not the words in the Declaration which are the most material so that the matter is not found fully enough for us to proceed to Iudgement one way or other Adjourned Poole against Coply Mich. 23. Ca. Banc. Reg. POole brings an Action of Trespasse against Coply Arrest of Iudgement in Trespasse and hath a verdict against the Defendant It was moved in arrest of Iudgement that the Declaration is incertain for the Plaintiff declares that the Defendant cepit et asportavit decem coria anglice hides and the word Coria is uncertain for it may be coria equorum or coria ovium or of any other Cattel To this Roll Iustice said Anglice that it is well enough for the Anglice had made the woord certain and it is the usual maner to plead it thus The Court ordered the Plaintiff should have his Iudgement if better matter were not shewn to the contrary Hull against Gurnet Mich. 23 Car. Banc. Reg. HUll brings an Action of false imprisonment against Gurnet Demurrer upon a special plea in false imprisonment the Defendant pleads a speciall justification that he took and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty to examine the taking away of certain goods which were wracked by the Sea Custom To this plea the Plaintiff demurred and shewed for cause That the Defendant hath not set forth the Custom of the Admirall Court that the first processe thereof is a Capias and so it appears not whether he have proceeded right or no. Admiralty 2ly It doth not appear that the matter for which the Commission was granted is Maritime and other matter they ought not to medle withall The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea. Smith against Stone Mich. 23 Car. Banc. Reg. SMith brought an Action of Trespasse against Stone pedibus ambulando Special justification in trespasse pedibus ambulando Trespass the Defendant pleads this speciall plea in justification viz. That he was carryed upon the land of the Plaintiff by force and violence of others and was not there voluntarily which is the same trepasse for which the Plaintif brings his Action The Plaintiff demurs to this plea In this case Roll Iustice said that it is the Trespasse of the party that carryed the Defendant upon the land and not the Trespasse of the Defendant as he that drives my Cattel into another mans land is the Trespassor against him and not I who am owner of the Cattell Mathew against Herle Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1554. MAthew brought an Action of trespasse against Herle for breaking his Fence and entring into his Close c. Demurrer to a plea in trespass quare clausum fregit The Defendant pleads that I. S. was seised of this land wherein the Trespasse is
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
Iustice You might have demurred for this doubleness for one cannot assign an error in fact and another error in Law in a Writ of Error for this is double Hales It is true but we have lost that advantage Adjourned to be argued again the next Term. Robinson against Mich. 23 Car. Banc. Reg. RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass and hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good for the Plaintiff amongst other things declares that the Plaintiff had found and converted to his own use unum vestigium Anglice a Footstool whereas it signifies a Footstep or a print of the foot and not a Footstool 2ly The Plaintiff declares pro decem ponderibus Aeris meaning ten pound of Brass whereas it should be aeris with a Dipthong for Aeris is of Ayr and not Brass But this exception was over-ruled by the Court because in the writing of Court-hand in which hand Declarations are written No Dipthongs in Court-hand there are no Dipthongs used and so the word Aeris might as well signifie Brass as Ayre But for the other exception judgement was stayed till the Plaintiff should move Izack against Green Mich. 23 Car. Banc. Reg. Izack brings an Action upon the Case in London against Green For a Procedendo to try an action in London for calling her Whore Green removes the cause by a Habeas corpus into this Court and hath a Supersedeas to stay the Plaintiffs procéedings in London The Plaintiffs Councel moved for a Procedendo that he might procéed in London because that in London by a special Custom there an Action doth lye for calling a woman Whore though out of London it lyes not and cited Pascal and Barbars Case 21 Iac. to prove it Bacon Iustice The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it and we are not to take notice of it upon a surmise and it seems that a procedendo should not here be granted Procedendo Notice because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it and not to our Law as it is 2 H. 4. Roll Iustice One may in some Cases have an Action at the Common law where he may have remedy also in the Ecclesiasticall Court for the Common law is to be preferred and by a special custom as the Case here is an Action may be maintained where it lyes not at the Common law and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case the Plaintiff would be tyed up by the habeas corpus but if it be granted the matter may be tryed and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London and so all the matter may come in question to be argued Action and he said that a Charter cannot give an Action which the Common law allows not But let the matter rest as it is till we can agree Mich. 23 Car. Banc. Reg. THe Plaintiff brought his Action upon the Case Arrest of Iudgement in an action upon the case for these words thou muttron-monger theef bring home my stolen hay The Defendant makes a special justification that the Plaintiff had stollen a sheep and upon this was an issue joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement that the Declaration was not good for it only chargeth the Defendant with speaking of the words and doth not say dixit de querente and though those words be in the replication yet that makes not the Declaration good Roll Iustice The Declaration is not good for the words may be spoken of any other body as well as of the Plaintiff Bacon Iustice agrees with Roll and said that the word dixit was not in the Declaration and so it appears not whether the Defendant spoke or writ or thought the words and which is more it is not said that the words were spoken in the presence of any body and then they cannot be scandalous Roll Iustice said one cannot rejoyn upon words which are not in the Declaration nor in the plea for if the Declaration and the plea be naught Replication the replication cannot make them good The rule of Court was nil capiat per billam except cause shewn Saturday following Kinpe against Iohnson Mich 23 Car. Banc. Reg. Pasc 23 Car. rot 154. A Writ of Error was brought to reverse a Iudgement given in Hull Error upon a Judgement in Hall Continuance for these Errors assigned 1. That one of the continuances was to a certain day of the mouth where it ought to be ad proximam curiam 2. The Declaration was pro se decem bestiis Anglice Cows or Whyes which is too general for the word bestia may signifie any beast whatsoever as well as a Cow The Iudgement was reversed except cause shewn to the contrary More against Clipsam Mich. 23 Car. Banc. Reg. MOre brings a Replevin against Clipsam Argument upon a Replevin and declares of a hundred oves Matrices et vervices distrained by Clipsam Clipsam demurs to the Replevin for the incertainty of it for it appears not how many of the hundred sheep distrayned and replevied were Matrices or ewes and how many were vervices or weathers Maynard moves for Iudgement in the Replevin for the Plaintiff and held that centum oves alone was good and certain and the addition Matrices and vervices shall not make an incertainty Incertainty and the writ of Replevin doth not shew the cattell distrained particularly but the help of the party and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ 2ly Here is a good issue argumentative although it be not so formal 3ly Issue There is no more in the issue at the Bar than in the avowry for all the Term is but one day ther is no division of time in it it is dangerous to make fractions Term. a Statute acknowledged in the Term relates to the first day of the Term. Statute Relation Hales on the other side agreed that centum oves without saying any more had been certain enough but as they are here distinguished into Matrices vervices there is no certainty at all for the Cattel in kind are demanded and ought to be delivered as they are demanded so that if the demand be incertain there can be no certain delivery 2ly The issue is ill and is not helped by the verdict for 1. the title made is not answered 2. Traverse The traverse is only to the conclusion and so is but by way of inference and is not helped after a verdict for the plea is not answered Advantage for the words
fuit et adhuc est sesitus is not good for it is not material whether he were seised at the time of the distresse or no but whether he were seised at the time of the replevin and there is a distance between the replevin and the avowry and there is a prius and a posterius in it Roll Iustice said it is made up in the retorn and there is no distinction of time and if one plead an ill plea Plea and the issue upon it be found against him he shall not take advantage of his own ill plea and if there be a negative and an affirmative though the issue be not well joyned it is helped by the Statute of Ieofailes otherwise if there be not an affirmative and a negative for then there is no issue at all joyned to be helped Bacon Iustice Oves matrices et vervices is ill for the Sheriff knowes not what retorn to make Roll accords and said you have made that which was certain to be incertain by the specification you have made and a replevin is a demand and ought to be as certain as a precipe Iudgement was given against the Plaintiff in the case at the bar because the Declaration was ill and uncertain Gilbert agaiast Stone Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1703. GIlbert brought an Action of Trespasse quare clausum fregit Demurrer upon a plea in Trespasse and taking of a gelding against Stone The Defendant pleads that he for fear of his life and wounding of twelve armed men who threatned to kill him if he did not the fact went into the house of the Plaintiff and took the gelding The Plaintiff demurred to this plea Roll Iustice This is no plea to justifie the Defendant Trespasse for I may not do a Trespasse to one for fear of threatnings of another for by this means the party injured shall have no satisfaction for he cannot have it of the party that threatned Therefore let the Plaintiff have his Iudgement Symons and Low Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 650. SYmons brings an Action upon the Case against Low for speaking these words of hir Error upon a Iudgement for words Plaint She innuendo the Plaintiff is perjured and hath a verdict and a Iudgement the Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the plaint was entred the same day that the words were spoken which was said ought not to be because the Action should be brought after the words spoken Fractions which shall not be intended to be if it be the same day because the Law admits of no fractions of time which will be if a day be divided into several parts as it here must be for there must be one hour supposed when the words were spoken and another hour when the plaint was entred But Roll Iustice said it was well enough and ordered the Plaintiff to take her Iudgement if cause were not shewn before the end of the Term. Cheevers against Mich. 23 Car. Banc. Reg. VPon a rule of Court to shew cause why a scire facias to revive a Iudgment was not good To quash a scire facias This was offred for cause that it doth not shew before whom the Iudgement was given which was to be revived by the scire facias and consequently there appears no Iudgement to warrant the scire facias To this Roll Iustice answered that in the Common pleas the course is to set forth before whom the Iudgement is given but in this Court the course is not so But how comes the Record hither The Councell answered That there was a Iudgement in Canterbury and upon that a Writ of Error was brought in this Court and the Iudgement affirmed upon that Writ of Error Scire facias and then a Scire facias issued out here upon the Iudgement against the bail and upon this the bail moves upon the record that there is error in the scire facias Roll Iustice The Record is well enough In a scire facias it is not requisite to say Consideratum est per curiam Therefore let the scire facias stand Carver and Pierce Mich. 23 Car. Banc. Reg. THe Case between Carver and Pierce was again moved by Hales Arrest of Iudgement for words wherin it was moved formerly in arrest of Iudgement that these words Thou art a theef and hast stolen my dung are not actionable That the words are actionable for these reasons 1. The first words are actionable and the second words are accumulative and aggravate the former words and do not mitigate them 2. It may be felony to steal dung and the violence of the words do enforce it to be so intended Bacon Iustice I hold that Iudgement is to be given for the Plaintiff and so it was for these words thou art a theef and hast stolen my Corn. Roll Iustice was of the same opinion and said that the second words are not violent enough to allay the first words and are not explanatory and by way of mitigation for the words are not for thou hast but they are and thou hast stollen my dung Iudgement was given for the Plaintiff antea Eeles and Lambert Mich. 23 Car. Banc. Reg. THe Case between Eeles and Lambert was again argued by Latch for the Plaintiff and by Twisden for the Defendant Latch argued to this effect Argument upon a plea by an Executor Legacy That the Legatee hath no right in the legacy untill it be delivered unto him by the Executor 2 E. 4 fol. 13. but if a legacy be given in this manner if I dye let my Cosen have such a thing there the Legatee may take the legacy without the delivery of the Executor and a thing which cannot be devided cannot be administred Bracton l. b. 2. C. 26. 7 H. 6. Administration Devise A devise is void if there be not sufficient goods besides to satisfie the Debts of the Testator 2. The disposition of the Testator ought to agree with the law of God the law of nature and the Law of the Land and whereas it is objected that there will be an inconvenience if the legacies shall not be paid I answer the Law regards not this inconveniencie But 2ly this inconvenience is none in respect of the inconvenience will be on the other side if the legacies be paid namely the breaking of the Law of God the Law of Nature and of the Land and the inconveniences supposed are helped by the Civill Law Caution for it takes caution in paying of legacies to repay them in such accidents as are in our Case Twisden for the Defendant argued that it was a good administration of the goods and that there is no assets in the hands of the Executors and he agrees that a devise of goods in specie and a devise of mony is all one but this is not a Debt and so is not to be paid for in
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
declared and the Defendant hath emparled and after emparlance he pleads that the lands are antient demean Plea which is a dillatory plea. Roll Iustice It is a good plea after imparlance for it goes in bar of the Action it self and not in abatement of the Writ The King and Holland Hill 23 Car. Banc. Reg. ROll Iustice said Opinion of the Court for restitution in this Court not in Chancery Iudgement Restitution that in this case formerly argued restitution ought to be given to the party for the same Iudgement shall be given here which should be given in Chancery and all the Record is here before us and they in Chancery cannot do any thing in the cause for they have nothing before them And it appears to us that the Declaration was insufficient and so we cannot give Iudgement for the Plaintiff but against him notwithstanding the inquisition found for the King Therefore let the party have restitution except cause shewed the first Friday in the next Term. Hill 23 Car. Banc. Reg. THe Court was moved to discharge a prisoner brought to the Bar For discharge of a prisoner by a habeas Corpus committed by the Committee of plundred Ministers and these exceptions were taken to the retorn 1. There is no time expressed how long the party shall stand committed Commitment so he is committed without limitation of time which is not legall 2ly He is committed by the name of Mr. Smith and his name of baptism is omitted which ought not to be Vpon these exceptions the Court held the commitment illegal and discharged the party Weekes and VVeekes Hill 23 Car. Banc. Reg. VPon the retorn of a certiorari to remove orders made by Commissioners of Sewers Against a retorn of orders of commissioners of Sewers Retorn Notice It was moved that the retorn was not good because it was not made by the partyes to whom the certiorari was directed for it was directed to the Commissioners and the retorn is made by the Clark of the Sewers But the Court said the retorn was good enough for all the retorns are so and the Clark is an officer of whom the Law takes notice of and it belongs to him to do it Pasc â—4 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour court in an Action upon the case Error to reverse a Iudgement in an inferior court in an Action upon the case Retorn Day in court and the Error assigned was that the habeas corpus was not well retorned for it is not retorned to be in omnibus servitum et executum as it ought to be and as the usual form is Maynard of Councel against the Writ of Error argued that it was well retorned notwithstanding those words were omitted because the Iury did appear full and no issues were lost and the Iury have day by the roll 3 H. 7. 14. per Hussey and 9 E. 4. 14. it is made a question but not resolved 2ly Though it be a Sisp yet it is within the Statute of 21. Iac. and is helped by it for that Statute extends to more than Writs as may appear by the Statute and the Statute of 18 Eliz. Bill Original writ recâ—ipt touching original Writs extends to faults of bills although original Writs are only named for a bill is the same in substance with a Writ so here the Writ and precept are of the same substance 3ly it is the intent of the Statute and the Statute shall be taken by equity Hill 13. Iac. in this Court in Gregory and Brookes case this question was stirred but not resolved and Hobart denyes the 5th report f. 61. to be Law and there is no proceedings properly in superiour Courts by plaint Roll Iustice The Statute extends not to point of equity in inferior Courts for their proceedings are not so regular as the proceedings in the high Courts here at Westminster but they are by short notes Bring us books and move it again Creswell against Ventryes Pasc 24 Car. Banc. Reg. CReswell brought an Action upon the case against Ventryes for speaking these words of him Arrest of Iudgment in an action upon the Case for words Thou didst and dost receive thief stollen goods witnesse a feather bed tick in thy house and the cloath which thy mans suit was made of and thou knewest they were stollen The Plaintiff hath a verdict the Defendant moves in arrest of Iudgement that the words are not actioanble for one may receive stollen goods and yet not be guilty of Felony Becon Iustice The receiving of stollen goods is not felony but the receiving and comforting of the Felon is Felony Felony The Iudgement was stayed till the other should move Thynn against Thynn Pasc 24 Car. Banc. Reg. THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr Error to reverse a Iudgement in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly taken said that the summons was well enough retorned as it is because it was made upon some part of the land within the Vil Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly It is not necessary to make the Proclamation Proclamation where the summons is for the Statute intends not to alter the course of the summons 2ly The words of the Statute are satisfied for the actual summons in one Vill is a summons in the other Vills 3ly The meaning of the Statute is satisfied and the mischef intended to be satisfied by the Statute Hob. 173. Allen and Walkers Case Demand For the 2d exception to the Demand he held it good enough for in a Writ of Dower a Demand needeth not to be so particular as in other Writs so is it in an Assise 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower 161. and the reason is because the Wife demands not the whole Land nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs And as to Harpers Case that is objected I answer it agrées not with our Case Regist f. 36. 16 E. 3. Fitzh Quar. Imp. 147. and it is certain enough because it is of a Rectory and not of Tithes in gross 3ly The demand of Tithes is surplusage and it is all one as to say the Rectory cum pertinentiis Then as to the Objection that one thing is twice demanded I answer it is not so â—â—aâ—ement Dammages but demanded as part of a thing demanded in the Writ and a Demand in a Writ of Dower shall not abate the Writ though one thing be twice demanded for dammages shall not be twice recovered 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court In Bluers Case 8 Car. one thing was twice demanded and yet the Writ was not
notice of the Almanack and the feast dayes there set down or no. It was adjourned to be argued again the next Term. Thynn against Thynn Pasc 24 Car. Banc. Reg. IN this Case wherein exceptions were formerly taken to the Writ of Error Opinion of the Court concerning a retorn and argued Bacon Iustice said he had read over the book and doubted whether many of the Errors formerly assigned are not out of doreâ— because the certiorari is not well retorned before us for the certiorari is directed to the Recorder and it is retorned by the Deputy Recorder in his own name Retorn Roll Iustice doubted also for he said all the old presidents were against this retorn But if the Writ be directed to a Recorder who is custosbrevium or to a Recorder and his Deputy then the retorn as it is will be good TWisden of Councel with the Plaintiff in the Writ of Error in the Wiltshire cause took these exceptions The first exception take was Error and exceptions offered to a Iudgement in Dowr that he demand of Dowr is larger than the originall Writ for that the demand is of the Parish of Timesbury and the Writ is of the Vill of Timesbury which is not so large by intendment as a parish because there may be divers Vills in one parish and he said that in some case a Writ shall restrain a demand in other cases it shall not namely where they cannot stand together and so is it here 21 E. 4. f. 24. 3 E. 3. f. 56. Demand A second exception was that the nature of the tithes demanded are not set forth although they be not in gross but appendant as they ought to be Dowr and a feme was not dowable at all of tithes before the Statute of 32 H. 8. and a feme is dowable of Common appendant but not of Common in gross A third exception was that Dowr is recovered of a thing not dowable viz. of a quarry of stones for if she should be dowable of a quarry of stones this would be to the destruction of the inheritance and indeed it is impossible for a quarry of stones cannot be divided by metes and bounds which must be if she should be endowed of it And also if the mine and quarry should be divided the Tenant of the Land would be prejudiced and that a quarry cannot be divided see Cooks Lit. 164. and so was it adjudged 2 Iac. upon a reference to the Iudges Next there is also Error in fact for the Hundred of Warminster extends into the Hundred of Sutton parva Error in fact and so if she be endowed of the Hundred of Warminster she will be endowed of the third part of two Hundreds which is more than she demands by her Writ of Dowr Maynard of Councell with the Defendant in the Writ of Error said as to the summons he held there is a good summons and cited Hob. 137 Dalt f. 86. And there may be divers parishes in one Vill as well as divers Vills in one parish And to the exception that the demand of the Dowr in the Writ is generall whereas it ought to be a special demand he answered the demand in Dowr differs from other demands and is more favoured in Law for as Dowr it self is favoured in Law so are the proceedings in Law to recover it 6 E. 3. 45. 16. E. 2. 7. 8 H. 3. 11 Ed. 3. 85. 25 E. 3. breâ— 412. Fitz. Dowr 8 E. 3. Sect. 434. Reg. 39. And as to the surplusage in the demand this shall not abate the Writ 4 E. 3. 52. Fitz. brei 14. Abatement And that the parish should extend out of the Vill is a forein intendment and shall not be so taken against an Averment and when a Vill and a parish are named by one name one of them shall not be intended larger than the other if the contrary be not shewn Long quint. Ed. 4. f. 20. And he argued that a feme is dowable of a quarry and that it may be divided by metes and bounds for it may be divided by the profits although it cannot be divided by the quantity of the thing Roll Iustice said By no manner of pleading can one abate a Writ after Iudgement and how should it be so here And 2 Cases were cited by the Councell that bis petita shall not abate a Writ Mich. 9. Iac. Bolstrod and Brooks case and Easton and Styles case in a Writ of Dowr Pasc 24 Car. Banc. Reg. THe Plaintiff brought an Action of Trespasse quare vi et armis for rescuing of a Prisoner out of his possession Arrest of Iudgement in an action of Trespass vi et armis for rescous and hath a verdict against the Defendant The Defendant moves in arrest of Iudgement for that the Plaintiff ought to have brought his Action of Trespass upon the Case and not an Action of Trespass quare vi armis But Roll Iustice answered that he might have an Action upon the Case or a Trespass vi armis at his election Election of Action and therefore the exception is null Another exception was taken that there was 4 years between the time of the Trespass done and the time of bringing the Action Roll Iustice answered you should have pleaded this matter if you would have had advantage by it but it is to no purpose to urge it Another exception was taken that the Declaration says that he took him in his possession out of his possession But the Court over-ruled this also and ordered the Defendant to shew better matter why Iudgement should not be given against him King against Pasc 24 Car. Banc. Reg. KIng brought an Action of the Case in London against the Defendant For a Procedendo in an action upon the Case removed our of London Custome for speaking these words of her Thou art a Whore and Cantrels Whore and hast been so this forty years The Defendant removed the Cause into this Court by a Certiorari the Plaintiff moved for a Procedendo But nothing was done in it for the Court was divided for Bacon Iustice held the words not actionable But Roll Iustice held that by the Custome of London they were though not at the Common-law Aylett against Stellam Pasc 24 Car. Banc. Reg. TWisden upon a rule of Court to shew cause why there should not be a new Tryal Cause why no new Tryal said that two things were alleged on the other side that there ought to be a new Tryal 1. That two of the Iurors were of kin to the Plaintiff And 2ly That there was notice given to the Defendant of a second Venire facias To the first of which he answered that the Iurors were not of kin and produced an Affidavit for proof Roll Iustice interrupted him and said it is not now material whether they be of kin or no for the Defendant should have taken advantage of that upon his challenge at the Tryal
enough to the Iury. Therefore let the Plaintiff take his Iudgement Scoble against Tolye Pasc 24 Car. Banc Reg. SCoble brings an Action of Trespass against Toyle Demurrer upon a Replication in Trespass for taking away his Cattel The Defendant pleads that the Plaintiff was possessed of the Cattel joyntly with another not named in the Writ and demands Iudgement of the Writ The Plaitiff replies that the other with whom he was joyntly possessed was dead at the time of the Action brought The Defendant demurs for delay The Court ruled a respondes ouster Maynard of Councel with the Plaintiff said it was peremptory Peremptory But the Court was against him and ordered the Defendant to plead in chief Saturday following Hart against Bucminster Pasc 24 Car. Banc. Reg. Hill 23 Car. rot 225. HArt brought an Action of Debt upon an Obligation of 200 l. Iudgement demanded of a Plea against Buckminster and sets forth that the condition of the Obligation was to this effect That whereas Hart had carryed so many thousand of Billets and delivered them at Dartford in Kent for the use of Buckminster amounting at so much by the thousand to a hundred pound in the whole if therefore the Defendant should pay the said hundred pound at such a time and place that then the Obligation to be void or else to be in force and for non-payment was the Action brought The Defendant sayes that the Plaintiff did not carry and deliver so many thousand of Billets to Dartford as the Plaintiff had declared and demands Iudgement of the Action The Plaintiff by way of replication demands Iudgement if the Defendant shall be admitted to pleadt his Plea which is contrary to the averment of the Obligation which is his own Déed and shall not be estopped thereby Estople To this the Defendant demurs And the Court held that this recital in the Obligation is an Estople to the Defendant to plead the contrary and the rule was for him to shew cause why Iudgement should not be given against him upon his Demurrer Southcott against Southcott Pasc 24 Car. Banc. Reg. SOuthcott brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes against Southcott Arrest of Iudgement in an Action for Tithes upon the Stat. of 2 Ed. 6. and hath a verdict The Defendant moves in arrest of Iudgement and shews that the Declaration was too general and incertain for it is for such a quantity of Grain and doth not set forth what sort of Grain and so it may be for Grain not titheable Maynard of Councel with the Plaintiff held that in this Case the Declaration was well enough although it would not have been so in an Action of trespass for that Action requires more certainty A 2d Exception was that it is not said whether the Corn was in Garbs or Sheaves To this Maynard said it is well enough notwithstanding for it shall be intended only of such Grain as is usually put in Garbs Hales of Councel with the Defendant said the word Grain was too general a word to be used Incertainty and no certainty in it for it extends to Mustard-seed Cole-seed Rape-seed c. and the genus ought to be expressed and it shall not be intended of Corn put in Garbs The Court would advise but enclined the Declaration was too general and not good Postea Pasc 24 Car. Banc. Reg. SIr Iohn Stowell endicted in the Country for high Treason was brought to the Bar by a Habeas corpus to be tryed Proceeding against a Prisoner for high Treason and desired to hold up his hand which he refused But the Court admonished him to do it because that before he did so he could not plead and if he were to plead a pardon for Treason he could not do it till he were first charged with the Endictment And Doctor Stories case 32 Eliz. was cited and it was said that though in an Endictment for Felony if the Prisoner refuse to plead he is to be pressed Yet in Treason it is not so for if the Prisoner indicted of Treason will not put himself upon his Tryal Pressing or answer impertinently which is not answering but nugation Iudgement Pro confesso judgement shall be given against him as taken pro confesso that he is guilty Pasc 24 Car. Banc. Reg. AN Action of the Case was brought against one for causing the Plaintif to be endicted of Rebellion and Felony Arrest of Iudgment in an action upon the Case The Defendant moves in arrest of Iudgement and shews that the Declaration was incertain for it sets forth an Endictment in quo crimen rebellionis ei imposuit felonii which words are so incertain that it appears not what the Plaintiff was charged with in the Endictment and so there could never have béen any Iudgment given against him Maynard on the other side said it was well expressed and could not well be otherwise expressed than it is Bacon Iustice said Rebellion Intention there may be Rebellion which is not capital as Rebellion in Chancery But Roll differed in opinion and said the intent of the words spoken is to be considered The rule was to bring Books to the Iudges Mayhue and Baspool Trin. 24 Car Banc. Reg. BAsâ—ool brought an Action upon the Case upon a promise against Maybue Error upon a Iudgement in an Action upon the Case and hath a Iudgement against him The Defendant brings a Writ of Error in this Court to reverse the Iudgement and assigns for Error 1 It is not said in the Declaration that the promise was made within the Iurisdiction of the Court But Roll Iustice answered that it was that the Desendant was indebted tunc ibidem which shews that he became indebted within the jurisdiction of the Court. Iurisdiction Assumpsit and the being indebted there is an Assumpsit in Law that he will pay the Debt and therefore it is not needfull of shew expresly that he did promise there to pay it 2ly The Venire is duodecim probos legales homines whereas it should be liberos c. But the Court over-ruled this exception also and affirmed the Iudgement except better matter should be shewn VVinn against Stebbins Trin. 24 Car. Banc. Reg. VPon a rule of Court for a reference to the Secondary Whether a contempt to the Court or not whether the party and the Sheriff were in contempt to the Court for taking out of Execution and executing it after a Writ of Error brought upon a Iudgment it was moved that he might make his report who thereupon reported to this effect That there was a writ of Error brought upon the Iudgement before Execution taken forth Notice but there was no notice thereof given to the party nor any supersedeas taken forth to stay Execution and therefore the Plaintiff might take out Execution Contempt notwithstanding the writ of Error brought and that thereby he is
escape Local upon an affidavit that the escape touching which the Action was brought was in another County and not in the County where the Action was brought But Roll Iustice said that an escape in one place is an escape all England over and is not local therefore the venue is not to be tyed to one place more than another Yet let the other party shew cause why the venue should not be altred Trin. 24 Car. Banc. Reg. VPon a rule to shew cause why Iudgement should not be stayed in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Exceptions answered offered in arrest of Iudgement in an action upon the Statute of 2 Ed. 6. for not setting forth of tithes Recital these exceptions for merly taken were answered 1. It was said the Statute was misrecited for the day when the Parliament began wherein the Statute was made is mistaken but to this it is answered that the Declaration doth not say per Statutum in Parliamento inchoat tali die but in Parliament tento tali die and the Parliament was held by prorogation the day that it is mentioned though it were not then first begun and so that is well enough To the second exception that the Declaration doth say that the Plaintiff was primo die occupator ac postea eodem die c. So that it appears not Proprietor that he was proprietor and so the Action may not lye for he may be occupator wrongfully and so not proprietor It is answered that the Declaration is that he was tali die possessionatus et ab eodem die occupavit and this shall be judged of a rightfull estate and it is said that he is rector ecclesiae and so he shall be intended proprietor of the Tithes if the contrary be not shewn The rule was to shew better cause Friday following else Judgement for the Plaintiff Sowthcott against Sowthcott Trin. 24 Car. Banc. Reg IN this Case formerly moved Exceptions answered taken to arrest judgement in an action for tithes Tithes and Iudgement stayed til the Plaintiff should move Maynard for the Plaintiff moved for Iudgement and to the exception taken on the other side that the word grain used in the Declaration is too general and may extend to grain not titheable viz. to rape-seed and cole-seed c. as well as to titheable and so the Declaration is incertain De said it is well enough for it is said grain growing in such a field by name which makes it certain 2 rep lib. Int. 176. 2d Coment f. 161. b. and for the word grain in comon understanding it is meant for corn and not for seeds though in a large exception it may extend to seeds also Hales on the otherside said that the word grain is incertain and signifies more than corn and also the word Garbae is too generall for it may extend to more than sheafs of Corn for bundles of any thing bound up may be said to be Garbae as well as Corn bound in sheafs and may extend also to grain not titheable Roll Iustice held the words in the Declaration Seminavit cum grano proper enough Comon intent and that by common construction it shall be meant with Corn and not with seeds 10 Car. Goldsmiths Case Hill rot 8. And for Garbae it is also well enough for it shall be taken according to common construction which is to signifie corn bound up and shall not be taken in the large extent of the word for bundles of any thing else And the Iury hath taken notice of it for they have found debet which had they not they could not have found the verdict so The rule was for the Plaintiff to take his Iudgement if cause were not shewn Friday following The King and Sr. Henry Spiller Trin. 24 Car. â—anc Reg. THe Court was moved for the quashing of divers Endictments wherein Sr. Henry Spiller was endicted for not repairing a bridge For quashing divers Endictments for â—or repairing of a Bridge the exception to the first was that it doth not set forth in what County the bridge lyes and for that exception it was quashed Another Endictment was for not repairing of Mays Bridge and it doth not shew that the bridge is in the High-way But to this Roll Iustice said that the Endictment doth say it is a Common bridge and that is enough and it is needlesse to say it is in the Highway Another exception was taken to this Endictment that it did not shew whether the bridge were a cart bridge or a horse bridge or a foot bridge or what other passage was over it and for that exception that Endictment was quashed To a third Endictment for not repairing the same bridge this exception was taken viz. It sayes that Sr. Henry Spillar was bound to repair the bridge ratione manerii which cannot be good but it should be rationae tenurae manerii Roll Iustice said It ought to shew that he is owner of the manour and although it do expresse that he is bound to repair it ratione manerii sui that is but implication that he is to repair it Implication and makes it not appear that he is possessed of the manor and upon this exception was this Endictment quashed Addition To a fourth Endictment for not repairing the same bridge this exception was taken that there is no addition of the County where Sr. Henry Spillar dwelt as the Statute directs and for this it was also quashed Yet afterwards because there was no certificate that the bridge was repaired the Court would quash none of them but said let him plead to them The Defendants Councel moved that he might plead but to two of them and that processe might be spared to the rest Roll Iustice Appear to all and plead and proceed in two of them and processe shall be stayed to the rest Burrel and Lancaster Trin. 24 Car. Banc. Reg. BUrrell brought an Action of Trespasse quare clausum fregit against Lancaster Arrest of Iudgement in Trespasse quare clausum fregit Variance Nomen aggregativum and had a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is a variance between the writ and the Declaration for the writ is quare clausum fregit in the singular number and the Plaintiff declares of divers Closes But Roll Iustice said That it was well enough for the word clausum is nomen aggregativum and may contain many Closes and so may well enough agree with the Declaration And therefore let the Plhintiff take his Iudgement Glide against Dudeney Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 426. GLide brings an ejectione firmae against Dudeney in the Common pleas Error upon a Iudgement in an ejectione firmae in the Comon plea and hath a Iudgement by default against the Defendant whereupon a writ of enquiry issues out to enquire of the Damages and before the retorn
unto the Defendant the Arbitrators had awarded that the Plaintiff should pay unto the Defendant six pound in full satisfaction thereof which is lesse than they acknowledge to be due so that it cannot be a satisfaction 9 H. 7. f. 11. 46 E. 3. f. 7. 2ly The Award is that one of the parties shall deliver Dimissionem praedictam whereas it ought to be Indenturam dimissionis for the dimission is but the consent of the party to the Indenture and not the Indenture it self Cooks Instit 43 6. 3ly They award to deliver dimissionem praedictam in the House of a Stranger which ought not to be for the party must commit a trespass to do it if he cannot get leave of the Stranger which he is not bound to do 9 H. 7. 16. 18 Ed. 3. 23 19 Ed. 4. 41. The words are that it shall be delivered at the House and in and at are all one in grammatical construction Mich. 23 Car. Coleman and Painters Case 4ly They award one of the parties shall release thrée years rent to the other and there was but two years rent due so that it is impossible to be done 5ly They have made their Award upon a thing not submitted viz. that there should be a release of all Actions which might concern the rent Averment and lastly the party ought to shew he hath performed the Award on his part which he hath not not done 8 H. 6. 18. Brook Arbitrement Twisden of Councel on the other side to the first Exception said it is not to the purpose for Arbitrators may award a lesse sum than is due in satisfaction of it and though it be ill yet the Award is good as to so much whereof a good breach is assigned To the second he answered that the words dimissionem praedictam refer to the Indenture pleaded and so that is well enough To the third he said that the Award is that the Indenture shall be delivered at the House and it is lawfull for him to go to the House though not into the House of a Stranger The the 4th he answered that the words are to be understood that the party shall not pay the rent and not that he shall release it To the fift he said that the words alleged are no part of the Arbitrement And if the Obligation be released it is not material for the Arbitrement is performed and the words Premises restrain the Arbitrement to the Submission And to the sixth it is not necessary to shew how the Arbitrement is performed for if it be not the other party hath his remedy Roll Iustice said that in 12 Iac. it was adjudged that if an Arbitrement was for a thing to be done in or at the House of a Stranger it was well enough for it may be intended to be done at the House without doing a Trespass though not in the House except the contrary be shewed by the party In Lynyn and VVilliamson Hoofs Case and as to the words dimissionem praedictam that is also well enough for it shall be intended the Indenture of demise But let us have Books and move it again It was moved again and another exception taken that the promise was released Upon which the Court would advise Smith against Hobson Trin. 23 Car. rot 1078. SMith an Inn Keeper in VVarwick brought an Action upon the Case against Hobson Arrest of Iudgement in an action upon the Case for speaking these words Collonel Egerton had the French pox and hath set it in the House meaning the Plaintiffs House and William Smith and his wife meaning the Plaintiff and his Wife have it and all you The Plaintiff hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the words are not actionable for the words are that Collonel Egerton hath set the French pox in the House which is impossible for the House could not have the pox and the words William Smith and his Wife have it shall not be meant that they have the pox but the House for that is the next Antecedent to the words to which they shall refer And also where words are spoken doubtfully whether they be spoken true or false they shall be taken to be true and it may be here the words are true and then no Action lies for speaking of them also the Baron and Feme ought to joyn in the Action if they be actionable Ioyn in Action for they are spoken to both their prejudice and the Action is not to be brought by the Husband alone as here it is Also in this Case the words being spoken of a House the Writ of Enquiry of Dammages must be what Dammages is come to the House which cannot be Roll Iustice If an Action be brought for words and part of them be actionable and part are not yet an Action lyes for them which are actionable And in this Case the Husband alone may bring the Action for dammages to himself and he may afterwards bring another Action for the dammages done to his Wife And he held the words here actionable and bid the Plaintiff take his Iudgement if cause were not shewn to the contrary Saturday following Iudgement was afterwards given accordingly Marshall against Porter Hill 23 Car. rot 769. MArshall brings an Action of Trespass Quare vi armis for taking away his Cattel Demurrer to a special plea in Trespass Quare vi armis The Defendant pleads non Cul. as to the vi armis and as to the taking of the Cattel he pleads that he bought them in a Market-overt The Plaintiff demurs to this Plea and the Defendant joyns in the Demurrer The Exception taken to the Plea was that the Defendant doth not shew what day the Market was kept nor whether it were out of Lent according to the Patent for the keeping of the Market Roll Iustice said this ought to have been averred in the Plea and therefore the Plea is not good Averment Therefore let the Plaintiff have his Iudgement if cause be not shewn to the contrary Pitcher against Symons Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 189. SYmons brought an Action upon the Case upon an Assumpsit in the Compleas against Pitcher and hath a verdict and a Iudgement Error to reverse a Iudgement in an action upon an Assumpsit Issue Amendment The Defendant brought a Writ of Error here to reverse the Iudgement The Error assigned was that there was no issue joyned between the parties to the sute for it is praedictus Iosephus similiter whereas it should be praedictus Robertus Roll Iustice cited 9 Eliz. Dyer and said if it be praedictus Richardus where it ought to be Robertus it cannot be amended because the Issue is altered for it is joyned between other parties and so is it in this Case But move it again Friday next Deacon against Forest Trin. 24 Car. Banc. Reg. DEacon brings an Action in this Court against Forest VVhether
a Plea was peremptory or that there might be a Respondes ouster Peremptory Plea The Defendant appears in Michaelmas Term and imparâ—s to Hillary Term and before the day of Continuance pleads a Plea in abatement to which the Plaintiff demurs Yard of Councel with the Plaintiff said he conceived the Plea was peremptory to the Defendant because it comes after an imparlance a Continuance and so comes in lieu of a Peremptory for the Law admits but one delay and therefore the Defendant should have pleaded in Chief and not having done it his Plea shall be as if it were a Plea in Chief over-ruled and cited Long Quit. E. 4. f. 139. Roll Iustice You cite not the Book as it is here is but a Plea in Abatement and the Continuance makes it not peremptory 2 Ed. 4. f. 10. A second Exception was that the Plaintiff hath not demurred upon the Plea but pleaded to issue and here is a departure from the general issue Departure 34 H. 6. f. 8 9. Roll Iustice The Book is against you for upon a Demurrer a Plea dilatory is not peremptory but upon an issue joyned it is Yard The delay of the Demurrer makes it peremptory 22 H. 6. f. 55. Roll Iustice The Book cited is against you and in 50 E. 3. f. 20. Difference There is a difference taken betwéen the delay of the Court and the delay of the party and here is no delay in the party for he might have been forced by the rules of the Court to hasten the proceedings and the Book of 34 H. 6. is against you The Plea in Abatement ought not to have been received after imparlance but if it be received a Demurrer upon it it cannot be helped and if one plead a Plea after imparlance Plea which ought not to be pleaded the Plaintiff may pray the Court to over-rule it but if he demur upon it he admits that the Plea may be and one may plead a Plea in Bar by way of abatement e contra Therefore let the Defendant plead in Chief if cause be not shewed on Friday to the contrary Burges against Dynham Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1191. BUrges brought an Action of Trespass against Dynham for taking 24 load of Tymber Demurrer upon a Plea of Iustification The Defendant justifies that he took the Tymber as a Deputy of a Purve your to the King for the reparations of the Mansion houses of the King To this Plea of Iustification the Plaintiff demurs and for cause sheweth that it doth not appear that the Defendant hath any authority by the Common-law or by Statute to take this Tymber for the Commission which gives this authority ought to be renewed every sir Months Commission and it doth not appear that it was so in this Case 2 Institut f. 545. 10 E. 4. 2 3. 2ly He hath not shewed that the Houses were in decay when he took the Tymber and he cannot take it to make a Common stock to repair them afterward when they should fall to decay Purveyours 3ly Purveyours ought to pay ready mony for the commodities they take and he doth not shew in our Case that he paid ready mony for the Tymber by the Stat. 36 Ed. 3. C. 2. 47 Ed. 3. f. 8. but by 22 Ed. 3. Tit. Bar. 259. it seems to be otherwise but the Case there differs from this Case for there it was that a Purveyour may take Horses to use for a time without paying mony but it was not to alter the property 4ly He hath not shewed that he endevoured to agree with the Plaintiff for his Timber as he ought to have done Plea Hill 2 Car. rot 509. Parker and Sturgens case 5ly The plea is hudled up and is not pleaded particularly and distinctly as it ought to be so that the Plaintiff knows not how to take an issue 10 H. 7. The rule of Court was to bear the other side Friday next Brereton and Monington Trin 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour Court and the Error assigned was Error to reverse a judgement given in an infetiour court Plaint Amendment that the Plaint was entred against Francis and the proceedings were against Iohn Roll Iustice said that it was not good for a Plaint is in the nature of an original writ and therefore if that be erroneous it cannot be helped though it be after a verdict And therefore shew cause Saturday next why the Iudgement should not be reversed Gallop against Symson Trin. 24 Car. Banc. Reg. CHase brings an Action of Trover and Conversion against Gallop Error to reverse a judgement in a trover and conversion and his wife and a stranger in the Common pleas and hath a verdict and a Iudgement against them The Defendant brings a writ of Error to reverse this Iudgement and assigns for Error that the Plaintiff declares that the goods for which the Action is brought venerunt ad usum ipsorum viz. of the Husband and his wife and the stranger which cannot be Declaration for they cannot be said to come to the use of a Feme covert Roll Iustice This is not good for he ought not to declare that the goods came to the use of the Feme but to the use of the Husband only And therefore reversetur judicium except cause shewn to the contrary Saturday next Wainewright and VVhitly Trin. 24 Car. Banc. Reg. VVAinewright brought an Action upon the Case against Whitly Arrest of judgement in an action upon the case for these words spoken of him Thou art a theef and hast broke my Chest The Plaintiff hath a verdict The Defendant in arrest of Iudgement moves that the words are not actionable But Roll Iustice said notwithstanding my Lord Hobarts opinion he held the words are actionable for the word and is cumulative and aggravates the former words Cumulative Explanatory are not barely explanatory and the subsequent words are violent and may very well stand with the former Therefore let the Plaintiff take his Iudgement The King and Camell Trin. 24 Car. Banc Reg. ANn Camell endicted at Southwold in Suffolk for Felony and Witch-craft was brought to the Bar by an habeas corpus An arraignment for witch-craft and was here arraigned The prisoner desired Walker for her Councel Roll Iustice asked her for what cause and matter she did desire Councell To which the prisoner making no answer Roll Iustice viewed the Endictment and upon that assigned her Walker for her Councel and gave him the next day to shew his exceptions against the Endictment at which time Walker desired that the Endictment might be read which was done and upon the reading of it he took these exceptions 1. To the caption wherein it is expressed that the Endictment was taken in pena cessione Endictment where it should be in plena cessione To this Roll answered if
the word pena be left out the Endictment is good enough without it and therefore passes ouster A second exception was that the Endictment doth not say that the Iustices before whom it was taken were justiciarii ad pacem tenendam in villa praedicta and then they might have no power to find the Endictment but this exception was also over-ruled by the Court A third exception was That the Endictment is too general for it only sayes that the prisoner practicavit diabolias artes and doth not expresse what To this Roll Justice answered that the employing of wicked spirits to any intent whatsoever is Felony within the Statute Felony and the intent why they were employed is well expressed in the Endictment and if an Endictment fail in one part it may be good in another and therefore the Endictment is good and the prisoner must plead Whereupon the prisoner pleaded not guilty Vpon this Walker moved the Court that this was an old Endictment and that the prisoner had been twice acquitted upon other Endictments of the same nature and that this was prosecuted for malice and prayed that the prisoner might be bailed which was granted And she was bailed by her Husband and by one Zachary Baggs a sufficient Citizen and Fishmonger of London and two others to appear at the next Assises to be held for the County of Suffolk Trin. 24 Car. Banc. Reg THe Court was moved to quash an Endictment exhibited upon the Statute of perjury at Kingston upon Thames for these exceptions To quash an Endictment upon the Statute of perjury 1. It is not expressed in what County Kingston is and 2ly the Endictment doth not expresse how the party is perjured for it shews not in what cause it was nor that it was in giving any evidence upon oath as a witnesse in any cause Vpon these exceptions the Endictment was quashed Nota Butler against Long. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 496. LOng brought an Action of Trespasse against Butler in the City of _____ and hath a verdict and a Iudgement Error to reverse a judgement given in an inferiour Court the Defendant brings a writ of Error to reverse this Iudgement and assigns for Error 1. That the Declaration doth not shew in what Parish within the City the Trespasse was done as he ought To this Roll Iustice answered That it shall not be intended that there are more Parishes within the City than one Intention except the contrary be shewed 2ly The Declaration est quod cum talis viz. the Defendant c. which is not an expresse averment Declaration Trespasse that the Defendant did the Trespasse but it is set forth only by way of circumstance that he did it which is not good for he ought to be charged directly with it Roll Iustice The setting forth the Trespasse by a Quod cum is not good tho gh in another Action it may be good Therefore let the Iudgement be reversed except cause shewn to the contrary Saturday next VValker and Alder Trin. 24 Car. Banc. Reg ALder had a Iudgement and an Execution against Walker Auditaquereld for one taken twice upon one execution and thereupon he was taken and in custody in the Kings Bench prison Alder the Plaintiff afterwards consented that the Defendant Walker should come to him out of prison to the Horshoe Tavern which was out of the Rule without a Keeper or rule of Court thinking to make some agreement with him The Defendant accordingly went thither but because no agreement could be made The Plaintiff takes the Defendant again upon the same Execution and layes him again in the Kings Bench Audita querela Discharge the Defendant thereupon brings his audita querela And adjudged by the Court to be well brought for the Execution was discharged by the Prisoners going at large and therefore he could not be again taken upon it Reader against Palmer Trin. 24 Car. Banc. Reg. REader brought an Action upon the Case against Palmer Arrest of Iudgement in action upon the case for altering the Declaratio and hath a verdict the Defendant moved in arrest of Iudgement that the Plaintiff altered his Declaration in the consideration of the promise and in the promise it self after he had pleaded so that thereby the same issue which is tryed is not that which was joyned Twisden of Councell with the Plaintiff said that the issue was not altered for the words altered are not material words Wild of Councell with the Defendant said the issue was altered by alteration of the words for the Action is brought upon a special promise and not upon a promise in Law as the altering of the words have made the promise to be and therefore it is a material alteration Roll Iustice said it is a material thing that is altered and it ought not to be amended An Actual promise and a consideration continuing Amendment cannot be taken to be at another time Hodg and Vavisors case 14 Iac. Barton and Shurlyes case Mich. 15 Car. And therefore give new rules to plead and so proceed according to the course to a new tryal VVolverly Strachy against Trin 24 Car. Banc. Reg. VVOlverly Strachy brought an Action upon the Case against the Defendant Demurrer upon a plea in an action for scandalous words Plea declared that whereas she was a woman of agood fame and honest reputation c. The Defendant spake these words of her viz. she is a common Whore and I will prove her one by reason whereof she lost her credit and reputation and her mariage The Defendant pleaded that she was not of an honest reputation at the time when he spake these words of her as is alleged in the Declaration The Plaintiff demurs generally to this plea. Iudgement was given for the Plaintiff except cause should be shewed Saturday next to the contrary Antea and the Lord Moone Trin. 24 Car. Banc. Reg. MY Lord Moone had a Sute commenced against him in this Court For a supersedeas for a Peer of the Realm Supersedeas Privilege and thereupon he moves by his Councel upon an affidavit that he was a Peer of the Realm and a Lord of the Parliament and therefore ought not to be sued and prayes for a supersedeas to stay the proceedings Roll Iustice Plead your privilege for upon an affidavit we will make no rule or else acquaint the other party that he is a Peer of the Realm and it is like he will forbear to proceed thereupon But you ought not to trouble the Court with such motions as these Cornish against Cowsye Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 1434. COrnish brought an Action of Debt against Cowsye an Executor Special verdict in Debt for rent against an Executor for arrerages of rent incurred part in the life of the Testator and part in the time of the Executor The Plaintiff declares upon a lease made by him to the Testator by
or else let the Plaintif take his judgement Trin. 24 Car. Banc. Reg. A Copyholder being sued in this Court for certain lands moved that the Steward of his Lords Court For a Steward of a Court to bring in the Court Rolls to whom he was a Copyholder might be ordered to bring in the Court-Rolls into this Court that by them he may be the better enabled to defend his title to the lands But Roll Iustice said He cannot be ordered to doe it by this Court therefore we will make no rule in it Trin. 24 Car. Banc. Reg. AN Action of Debt was brought for Rent in the Common Pleas Error to reverse a judgement in the Common Pleas fortent Misnosmer where the Plaintif had a Verdict and a judgement and a Writ of Error was brought in this Court to reverse this Iudgement The Errors assigned were 1. There is an Indenture recited to be between the Plaintif and Iohn Barber whereas it should have been Iohn Barker Roll Iustice answered It may be that he is known by the one name and the other and then it is well enough A second Exception was It is said per indenturam signatam and doth not say deliberatam and then it is no deed if it be not delivered To this Roll Iustice answered Deed. If he say per factum suum it is well enough notwithstanding for that implies it to be a perfect deed 3ly He declares for Rent of Houses in Kent street and doth not shew in what Parish Kent street is Adjourned Trin. 24 Car. Banc. Reg. THe Court was moved for a habeas corpus for a Prisoner in the Kings Bench Prison that he might be a writnesse in a cause to be tryed at the next Assises in Darby Shire But Roll Iustice answered we will grant no habeas corpus for this is but a trick of the party himself to gain his Liberty that he may go a hawking and hunting this long vacation But I have known it granted for one to be a witnesse at a trial at Yield Hall but at the charges and peril of the Party for whom he was to be a witnesse if he escape Mich. 24 Car. Banc. Reg. VPon a motion for a habeas Corpus for one in Execution upon a sentence given against him in the Court of the Admiralty For a habeas corpus for one in Execution upon a sentence in the Admiralty It was said by Roll Iustice That if one be sued in the Admiralty to a sentence and be in Execution upon it and be brought hither by a habeas corpus if upon the retorn it doth not appear that the Admiralty had not jurisdiction of the cause but it appears only that they had proceeded to a sentence against the rules of their own Court This Court will not deliver the Prisoner out of Execution Appeal for he ought to have made his appeal before he was taken in Execution And so is it touching the proceedings in other Courts of equity Cage Mich. 24 Car. Banc. Reg. ONe Cage was in Execution in the Kings Bench upon a Iudgement had against him for a hundred pound To vacate a satisfaction acknowledged upon a Iudgement The Plaintiffs Attorney by fraud without the consent of his Clyent acknowledgeth satisfaction upon this Iudgement afterwards the Attorney of the Defendant without the consent of his Clyent acknowledgeth another Iudgement for the same Debt The Plaintiffs Councel moved that the Defendant might be in Execution upon the first Iudgement and that the satisfaction acknowledged thereupon might be vacated Roll Iustice answered Commitment The Attorney ought to be committed for acknowledging the second Iudgement without Warrant But here are two frauds one of each side so that there is fraud against fraud and so the partyes are left to their remedyse one against the other but both the Attorneys shall be committed for their false practie And we will examine the whole truth of the matter Saturday next against Loveday Mich. 24 Car. Banc. Reg. THe Court was moved upon an affidavit that one of the Iurors that gave the verdict against the Plaintiff had a sute in law depending at that time with the Plaintiff and therefore that the tryal was not indifferent For a new tryal after verdict because a Iuror not indiste rent Challenge Tryal and therefore it was prayed there might be a new tryall But the Court said it could not be and asked the party why he did not challenge the Iuror for this cause at the tryal for want of which he had now lost that advantage Stradling and his wife against Boreman Mich. 24 Car. â—anc Reg. STradling and his wife brought an Action of Trespasse of Assault and battery Arrest of judgement in Trespasse Ioyn in Action and taking of a horse agianst Boreman and the Plaintiffs declare ad damnum ipsorum and have a verdict the Defendant moved in arrest of Iudgement and shewed for cause that the Baron and Feme cannot joyn in this Action but ought to bring severall Actions for the wrong done to each was severall The Iudgement was thereupon stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. AN Action upon the Case was brought for speaking these words Arrest of juogement in an action upon the Case He is gon and dares not shew himself for Debt and he is a Banckrupt for ought that I know the Plaintiff had a verdict the Defendant moves in attest of Iudgement that the words are not actionable because they are general and uncertain But the Court held that all the words taken together are actioanble but stayed the Iudgement for a week Mich. 24 Car. Banc. Reg. IVrors who appeared for a tryal at the Bar which fel off for want of a full Iury Iurors move for their charges prayed the Court they might have their charges because they came a great way and had attended long in town The Court answered them that it was their neighbours fault who did not appear that the tryal went not on for both the partyes are ready and if the cause had been tryed you should have had all your charges But now we can order nothing Mich. 24 Car. Banc. Reg. VPon a Retorn of a certiorari to remove an order of Sessions made against a Parish for not repairing of a high way Exception to an order and fine of Sessions Hales of Councel for the Parish took this exception viz. That the fine was set upon the Parish without any processe issued out against the Parish only upon a certificate of one of the Iustices of the peace made upon his own view that the way was not repaired and so the Parish was condemned before they were heard To this the Court answered That a Iustice of Peace may make a certificate upon his own view Certificate of the want of reparations of a Highway by the Statute Therefore bring a certificate that the way is repaired else we will do nothing for we
are accompted perils of the Seas Wood against Clemence Mich. 24 Car. Banc. Reg. Hill 22 Car. rot 804. VVOod brought an Action of Debt upon an Obligation to stand to an award against Clemence Demurrer upon an award pleaded The Defendant pleaded that the Arbitrators made no award The Plaintiff replies that the Vmpire made an award and sets it forth at large The Defendant demurs and for cause shews that it appears by the pleading that the Vmpire was chosen before he ought to be for it appears not that the Arbitrators could not agree in making the award or that they had any power to make an Vmpire 2ly The Award is made for satisfaction to the Owners and Mariners of the Ship concerning which the submission was made Award and one of them is the Plaintiff in this Action and they cannot arbitrate that the monies which concern one shall be paid to another and so all the award is naught Also here is nothing arbitrated concerning Iohn Acton the Master of the Ship who is one of the parties within the submission Roll Iustice As to the first Exception it is not a material one as I conceive But give a note of your exceptions to the Councel of the other side and bring us Books Postea Frere and others against Mich. 24 Car. Banc. Reg. AN Action of Debt was brought for 1500 l. upon a deed of Charter-party Arrest of judgement in debt The Plaintif had a verdict The Defendant moved in arrest of judgement and offers for cause that the Declaration was insufficient for it appears not by it that the Defendant is indebted to the Plaintif and then there is no cause of Action for the Declaration only says that he is indebted as it appears but shews now how Roll Iustice said it is by indenture and well enough Dyer 2 3 Phil. and Mar. f. 148. Plowden 121. 122. Debt Covenant Buckleys case 143. Browning and Beestons case 21 E. 4. f. 29 he said either an action of debt or an action of Covenant lies here for it is upon a Charter-party Here is not indeed a perfect allegation yet it is well enough for it hath béen usually thus pleaded Speak to it again Wednesday next Dison against Bartue Mich. 24 Car. Banc. Reg. DIson brought an action of Assault and Battery and taking of his goods Arrest of Iudgement in Assault and Battery against Bartue and had a Verdict the Defendant moved â—â— arrest of Iudgement and shewed for cause that the Declaration was â—â—â— good for it is with a quod cum c. which in an action of trespass vi et â—â—mis is not good for it is not a direct affirmative that the Defendant did the Trespass but it is only an implication that he did it but as it is it might have been good if the action had been an action of Trespasse upon the case The Iudgement was stayed till the Plaintif should move Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to stand to an Award Demurrer upon an Award pleaded The Defendant pleaded nullum arbitrium The Plaintiff replies and sets forth the Award and assigns a breach The Defendant demurs The Plaintiff after demurrer moves the Court that he might discontinue his Action But the Court said that after a demurrer upon an Arbitration it is not usual to discontinue the Action Discontinuance But let nil capiat per billam be entred if cause be not shewed to the contrary Mich. 24 Car. Banc. Reg. AN Action of Debt was brought by Baron and Feme upon an Obligation made to the Feme dum sola fuit Arrest of Iudgement by Baron and Feme and the Declaration is ad damnum ipsorum The Plaintiffs had a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Declaration should not be ad damnum ipsorum Declaration but only ad damnum of the Husband only But the Court held that the Declaration was well enough and said it is the usual way of declaring in such Actions and the mony due upon the Obligation not being paid to the Feme whilest she was sole it was dammage to her and now being Covert it is a dammage to the Baron also and so it is ad damnum ipsorum 16 E. 4. Therefore let the Plaintiff take his Judgement Quatermans Case Mich. 24 Car. Banc. Reg. IN the Case of one Quaterman Antient use of practâ—c altered Roll Iustice said that out of indulgence to the Bayl it hath been the use of later times that if the Bayl do bring in the principal before the retorn of the second Scire facias which was taken out against the Bayl Discharge thereupon to discharge the Bayl but antiently it was not so but it was then counted too late to bring him in Hill and Harris Micst 24 Car. Banc. Reg. AN Action of Debt was brought against divers Executors Arrest of judgement in an action of Debt against Executors The Defendants plead fully administred and upon this an Issue was joyned and a verdict found for the Plaintiff The Defendants moved in arrest of Iudgement that there is contrariety between the issue joyned and the verdict found for the Action is entire against all the Executors and they had all pleaded fully administred Verdict and upon this the issue was ioyned and the veredict finds that some of the Executors had fully administred and that others of them had Goods in their hands whereas the verdict should have been that they had not fully administred The Iudgement was stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. VPon a rule of Court to shew cause why restitution should not be granted upon an Endictment of forcible entry Cause why no restitution upon an endictment of forcible entry exception was taken to the Endictment that it did not say that the party entred illicite manu forti as the words of the Statute direct and it was said that in a forcible entry there ought to be an entry expulsion and deteyner Roll Iustice said that there ought to be manu forti in the Endictment according to the Statute to distinguish this kind of Entry from an ordinary Trespass by entring into anothers Land which is not so violent as a forceable entry is supposed to be But let us see the Copy of the Endictment Gibbs against Dunn Mich. 24 Car. Banc. Reg. GIbbs brought an Action upon the Case against Dunn Arrest of judgement in an action upon the Case for words for these several words spoken of him by the Defendants Wife at several times viz. thou art a thief for stealing my corn out of my Barn and at another time for saying thou art a thief The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that entire dammages were given for both the words whereas the first words were not actionable Dammages entire Intendment for the
Reg. MEmorandum on Wednesday the 14 of November 1648 Henry Roll Serjeant at law then one of the Iustices of this Bench took his place in Court as Lord chief Iustice of England and Twisden moved for a day to plead between Dunch and Smith being the first motion that was made in Court after he took his place The Lord chief Iustice Roll first took his place Popham against Hunt Mich. 24 Car. Banc. Reg Mich. 23 Car. rot 558. POpham brings an Action of Covenant upon an Indenture against Hunt Demurrer to a Declaration in an action of Covenant the Defendant demurs to the Declaration and the Plaintiff joyns in the Demurrer Vpon the pleading the Case appeared to be this a Feme sole delivers a certain sum of mony into the hands of I. S. and the Defendant thereupon Covenants with the Feme to pay unto A. B. 100 l. a yeer so long as the mony should continue in the hands of I. S. The Feme takes Baron The hundred pound per annum is arrere The Baron makes his Executor and dyes and after his death the 100 l. a yeer is behind also Popham the Executor brings this Action of Covenant Covenant and the question was whether the Action was well brought and the Court held the Action did lye for the Covenant doth concern the Executor because he represents the Testator but the question here is whether the rent due after the death of the Husband ought to be paid and how it shall be known whether he be dead for it is not specially alleged and if he be not dead there is no cause of Action Therefore consider of this Bragg against Nightingall Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 601. BRagg brought an Action of Covenant against Nightingall upon an Indenture Demurrer to a Declaration in an action of covenant The Defendant demurs to the Declaration The Case was this The Plaintiff let by Indenture certain houses for divers years to the Defendant and covenanted with him to repair the houses by such a day expressed in the Indenture The Defendant by the same Indenture covenanted with the Plaintiff that from the time that the Plaintiff was to repair the houses unto the end of the Term for which they were demised he would well sufficiently repair and leave them so repaired at the end of the Term for not performing of this Covenant on the Defendants part the Plaintiff brought his Action The cause shewed for the demurrer to the Declaration was that the Plaintiff had not shewed that he on his part had repaired the houses according to his Covenant and so the Defendant supposed he was not bound to repair because he was to repair from the time the Plaintiff had repaired them and not before and so there is no cause of Action After divers motions Roll chief Iustice said That here was a reciprocal Covenant to be performed on each part Covenant and although one do not perform the Covenant on his part this doth not excuse the other party but he is tyed to perform his Covenant neverthelesse and if he do not an Action lyes against him and he may bring his Action also against the other that first broke his Covenant and therefore the Action lyes here against the Defendant and so the demurrer is not good upon the cause shewed But if this were not a reciprocal Covenant the Law would be otherwise and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good for that it appears that it was the intent of both partyes that the Plaintiff should first repair and after that the Defendant should keep the houses in repair The Court would advise Smithson against VVells Mich. 24 Car. Banc. Reg. SMithson brought an Action upon the Case upon a promise against Wells A special verdict in an action upon the Case upon a promise and declared upon a promise made to save the Plaintiff harmlesse from such an obligation when he should be thereunto required The Defendant pleaded non Assumpsit and upon this a special verdict was found viz. generally that the Defendant did make promise to save the Plaintiff harmlesse from the Obligation that he had not done it The question hereupon was whether the verdict had found the same promise set forth in the Declaration because that was to save harmlesse upon request Verdict but the promise in the verdict mentions no request to be made but finds a promise generally to save one harmlesse The Court held that the Plaintiff ought to have Iudgment for that it was the same promise found in the verdict which was set forth in the Declaration for if one promise to save one harmlesse from a thing he that made the promise ought to do it at his perill without request Request Covenant and the request is not material although the promise say upon request But if he be damnified if I do recompence him upon request made the Covenant is not broken Emerson against Ridley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 400. RIdley brought an Action of Debt upon an Obligation against Emerson Error upon a Iudgement in Debt upon an Obligation The Condition of the Obligation was that the Defendant should not put his Cattel upon such a Common before a tryal and proof for the Common should be for the Commoners and assigns a breach that he did put on his Cattel upon the Common before the Tryal for the Commoners upon this an Issue was joyned and a verdict and a Iudgement for the Plaintiff The Defendant brings a Writ of Error and assigns for Error that the breach of the Condition assigned doth not agree with the Condition of the Obligation and so the action being brought upon the Obligation and no breach of the Condition being rightly assigned there appears no cause of Action and so the Iudgement is erroneous But it was said by the Councel with the Defendant that tryal and proof of a matter in common intendment is all one Intendment and so the difference alleged was only verbal and not real and it shall be taken to be a breach of the Condition and so there is good cause of Action and the Iudgement thereupon given is well enough Holhead on Councel on the other side denyed it to be all one in sense for that a Tryal may be and yet the Title may not not proved and there may be a Iudgement upon a Nihil dicit where is nothing proved and so concluded the Writ of Error did lye The Court desired to have Books Postea Jones against Iacob 24 Car. Banc. Reg. IOnes a Citizen and Pewterer of London Iudgement in an action upon the Case brought an Action upon the Case against Iacob for these words spoken of him He is gone and doth hide himself for debt and for ought I know he is a Banckrupt The Plaintiff had
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
with the Plaintif wherein the Action being an Action of Trespass for taking away wheat rye and wood upon an Elegit taken out against a Parson The Question was Whether Tithes are extendible upon an Elegit by the Statute or not And he held that they are not extendible first by the Common law confirmed by Mag. Charta they are not extendible Extent Cook upon Magna Charta 37 N. Brev. 227. Tithes are méerly Spiritual things and exempt from all Lay consideration 11 Rep. 14. Pridle and Nappers case Cawdries case 5 Rep. f. 15.35 H. 6.39 where rights of Tithes are in dispute the Common Law shall take place but not where the Tithes themselves are in dispute Seldens History of Tithes cap. 14. 2ly The Statute of Westminster makes no alteration of the Common law in this point and non usage is a good argument to prove it for if they had béen extendible it would sometime or other have been put in practice and by the express words of the Statute of Westminster the 2d Tithes are excepted and the process usually before that directed to the Bishop for sequestration is not taken away by the Statute of 5 Ed. 3.53 N. Brev. 66. Though it be a freehold yet is it not within the Statute and if it be within the words of the Statute yet is it not within the meaning of it as Cook upon the Stat. of Wesim 2. doth prove 35 H. 5.50 9 E. 2. Clergy men antiently were not included in general Acts of Parliaments because the Church was accompted as an Infant alwayes within age Clergy and so favoured and protected by Law Next the late Ordinance of Parliament hath made no alteration in this case for the Ordinance intended not to punish the Parsons of Churches although it doe out Bishops of their Bishopricks and dignities And as to the Objection That if the Tithes should not be here extendible there would be a failer of justice I answer That our case is out of the Common law upon which the rule that extraordinary courses are to be taken rather than there should be a failer of Iustice is grounded Roll chief Iustice said that there are two Questions in this case 1. Whether Tithes are within the Statute 2ly Whether now that Bishops are taken away by the Parliament the Sherifs may levy the debt of the Clergy as the Bishops used to doe and I conceive they may Levari by a levari facias But the great question is Whether the Elegit lye And the Court inclined it did But you will argue it again therefore we will deliver no opinion in it Elegit And the Court clearly held with Mr. Selden That Tithes are not due jure divino and directed to search presidents Tithes if a Recognisance had ever been extended upon Tithes Cane against Golding Mich. 1649. Banc. sup CAne brought an Action upon the case against Golding for slandring his title by speaking these words viz. His right and title thereunto is naught Arrest of Judgement in an action upon the case for slandering the Plaintifs title and I have a better title than he The Plaintif had a verdict The Defendant moved in Arrest of Iudgement that the words were not actionable Twisden of Councel with the Plaintif argued that the words are actionable for though the words spoken of themselves may not be actionable yet here they are alleged to be spoken falso et malitiose and that will make them actionable 43 B. 3. f. 33. N. Br. 95. Hob. Rep. Water and Freemans Case and as to the Objection that is made that the Declaration is only quod fuit verisimilis vendere and that he was hindered by the words and therefore there might have béen no bargain made though the words had not been spoken The answer is That it is well enough set forth as it is for all treaties upon Contracts are but likely to procéed and are not certain till the Contracts be made but which is more it is further alleged here that by reason of the speaking of these words he could not receive his Tithes which is an express loss Hales for the Defendant argued that the words of themselves are not actionable although they be said to be spoken falso et malitiose except a special damage be alleged to come to the party for such words as these differ from words that are spoken of the person of a man And though there be damage yet they are not scandalous for the Defendant claims a title as well as the Plaintif and the saying that the words were spoken falso malitiose doth not make them to be so spoken nor makes them actionable if they be not so in themselves Roll chief Iustice said there ought to be a scandal and a particular damage set forth but it is not so here But move it again Saturday next Postea White against Holford Mich. 1649. Banc. sup Trin. 1649. rot 1214. A Writ of Error was brought upon a Iudgement given in an Action of Debt upon an Obligation to stand to an Award and the Error assigned was Error to reverse a judgement in Debt upon an Obligation that the Arbitrement exceeded the submission for the submission was to stand to the award touching all matters in difference between the parties and the award was that the parties shall make general releases each to other of all demands and the word demands is a word of a larger signification than the word differences Award But Roll chief Iustice answered That if the release be more large in words yet it is good enough for it shall be intended only of all matters in debate between the parties and if there be other matters you ought to have shewn them in pleading otherwise the Court will not intend there are any to which the other Iudges agreed and gave judgement for the Plaintif except better matter should be shewn Brooke against Brooke Mich. 1649. Banc. sup Mich. 24 Car. rot 287. BRook brought an action of trespass quare clausum fregit for eating of his grass with Cattel Error to reverse a judgement in trespass quare clausum fregit c. against Brooke Vpon Not guilty pleaded an issue was joyned and the Plaintif had a verdict and a judgement The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error that the Declaration was incertain For the Plaintif declares of breaking his Close and eating his grass cum quibusdam averiis and doth not say what Cattel and so he may recover damages in this action and bring another action for the same trespass because it cannot be known what Cattel did the former trespass Barr. Averment Hales of Councel with the Defendant said the Declaration was good enough for it is good in substance although it might have been better in form and it being after a verdict the incertainty is helped And the Defendant if the Plaintif should bring a new action for
although the thing demanded be entire for he may as well release after the writ brought as before and there was no question but he might have released part before and he may release where there is an ill demand as well as where a demand is good Jerman Iustice held that Iudgement ought not to be given for he said that the reasons of the cases cited are not like to the reason of this case for here the verdict is not given for the same sum which is demanded and it doth appear that here is an unjust demand and it is his own fault and if the Defendant had demurred upon the Declaration it would have been adjudged no good Declaration But Nicholas and Ask Iustices agreed with Roll chief Iustice and so judgement was given for the Plaintif except better matter should be shewn on Saturday next Avery against Kirton Mich. 1649. Banc. sup Mich. 23. Car. rot 239. KIrton brought an Action of trespass against Avery Error upon a judgement in trespass and declared upon an original for imprisoning him till he entred into a bond of 600 l. upon Not guilty pleaded the Plaintif had a verdict and a judgement The Defendant brought a writ of Error and upon the Certiorari to remove the Record the Record was certified and in nullo erratum pleaded but the original in the Record certified was that the Defendant kept the Plaintif in prison til he entred into 2. bonds of 300 l. a piece whereas the right original was till be entred into one bond of 600 l. whereupon the party brought a new writ of Error and by that had the true original certified The Councel for the Defendant in the writ of Error said That original after original may as well be certified before in nullo est erratum pleaded Certificate as afterward but here the parties are at issue and the first original is certified and issue joyned upon that and there cannot be a new original certified and the original here doth not agree with the other parts of the Record and so cannot support it and our original certified stands with the Record and here is no Certiorari to warrant the original here certified and it is a material variance 3 Iac. Banc. Reg. Cummins case 9 H. 6. f. 38. Pasch 1649. Kedgwins case Yard on the other side answered that now the original is certified and is before you in this Court and you ought to judge as it is and not as it ought to be and it is agreeing with the former process And both the originals were before the Declaration and the Court shall take the right original and the other shall be intended for another cause Roll chief Iustice said The Certiorari is general and not inter partes praedict but the certificate is inter partes praedict And the Court may take the right original that is certified and the Iudges are not bound by the plea in nullo est erratum that is pleaded but may grant a new original writ of Error but the party cannot require it for he is concluded by his own plea Original Certiorari and if he discontinue his original he may have a new but not if he plead and the Certiorari is good and well certified and therefore judgement ought to be affirmed Ierman Nicholas and Ask to the same effect and so judgement was affirmed except better matter should be shewed Saturday next Ratcliff and Dudeny Mich. 1649. Banc. sup Entred Hill 23 Car. rot 369. VPon a special verdict A question upon the case falling out upon a special verdict the case was this A lease of a house and lands was made to I S. for 99 years the remainder to I D. for 99 years the remainder to A. B. for 99 years provided that if the lessees doe not inhabit in the house let during the whole term that then the lease shall be void The question here was How long the lessees were bound to inhabit in the house whether for the first 99 years or for that term also during all the years in remainder and which of the lessees were to Inhabit Windham held that the two first lessees only ought to inhabit during the first 99 years and no longer But Roll chief Iustice held that those in the remainder were not bound to inhabit before the remainder falls to them but reddendendo singula singulis they ought to inhabit successively one after another And he took an exception to the verdict That the lease being to begin after the death of one Robert Dudeny it did not find that Robert was dead and so it appears not that the lease is yet begun and so there can be no question stirred as yet Venire and thereupon the case was not argued but a Venire facias de novo was to issue because the special verdict was imperfect Cane against Golding Mich. 1649. Banc. sup THis case Opinion of the Judges upon an arrest of Iudgement in an Action of the case formerly spoken to and argued being an Action of the case for slandering the Plaintifs title was now spoken to by the Iudges And first by Roll chief Iustice who held that the Action did not lye although it be alleged that the words were spoken salso et malitiose for the Plaintif ought to shew a special Cause But that the verdict may supply But the Plaintif ought also to have shewed a special damage which he hath not don and this the verdict cannot supply The Declaration here is too general upon which no good issue can be joyned and he ought to have alleged that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered and that by speaking of them Case the sale was hindred and he cited 13 Iac Tuer and Bailyes case B. R. 21 Iac. Doctor Edwards and Balls case and 4 Car. Roe and Harwoods case a Iudgement in it in Windsor Court and reversed here and 12 Jac. Sell and Paryes case B. R. Ierman Iustice to the same effect and he said that there ought to be damnum et injuria alleged to maintain the Action for one without the other is not enough and here doth not appear any damage because there appears no communication of selling of the land Nicholas and Ask Iustices of the same opinion So the rule was Nil capiat per billam except better cause shewn Roll Iustice said that there is digitus Dei in the case for there was a strange verdict found Mich. 1649. Banc. sup THe Court was moved for a Supersedeas for the Earl Rivers For a Supersedeas for a Peer of the Realm denyed Privilege Notice who was Arrested by a bill of Middlesex and is in custody of the Marshall of this Court because he is Peer of the Realm and ought not to be arrested The Court answered You must plead your privilege if it be so for we cannot take notice of it upon a motion
himself and 2ly for a Contempt to the Court and because he would not find ball and it appears that the warrant for his commitment is not good for he is not committed for matter arising upon the Sea and so they have no Iurisdiction But the Court bid them proceed upon their prohibition Bail for they would not release the prisoner But if you will you may move it again Friday next Gilbert against Marden Mich. 1649. Banc. sup Trin. 1649. rot 942. A Writ of Error was brought to remove a judgement given in the Common pleas in an Action upon the case Vpon opening the record Error upon a judgement in the Common Pleas. Twisden took exception that the record was not removed for the Iudgement in the Common pleas was given Coram Petro Phesant and the writ of Error was to rectifie a record quod coram vobis reside The Court abated the writ of Error for this exception Abatement Smith against Andrews Mich. 1649. Banc. sup ANdrews an Attorney brought an Action upon the case against Smith Arrest of Judgement in an action on the case for speaking of these words against him He meaning the Plaintif stirrs up men to sutes and promiseth that if he recover not for them he will take no fees and yet in a sute which he so undertook for me wherein I was overthrown he took Charges of me Vpon not guilty pleaded there was a verdict and a judgement for the Plaintif The Defendant brought a writ of Error and for cause it was shewed by Maynard that there are entire damages given for divers words spoken at one time whereof some are Actionable and others not which ought not to be and 2ly The words in themselves are not actionable for an Attorney may stir up men to sutes if their sutes be lawful which Roll chief Iustice denyed 17 Car. Gibson and Baxter Maintenance And he said that an Attorney may prosecute his Clyents cause without seed and yet it is not maintenance Trin. 16 Car. Hill and Sands his Case Hales on the other side held that the words are Actionable for the words shall be taken in the worst sense and he also shews how he had stirred up sutes in an unlawful manner viz. by making of bargains with men at Markets Roll chief Iustice said that such words shall be taken mitiori sensu and this is a special maintenance for it is in the case of an Attorney and therefore lawfull but here are other words spoken to shew that he stirred up sutes unlawfully and the stirring up of sutes and making bargains to follow them is in it self unlawfull and great inconveniences doe grow by such manner of practising and all the words ought to be taken together and not dividedly for so you may make any words not actionable Ierman Iustice held the words were actionable because they are a great scandal and trenching to destroy the Plaintifs livelihood practice And said that Attorneys ought not to go to Markets to get practice the words spoken are to shew he is a stirrer up of sutes and to shew that he was a false dealer and the words shall be taken in the Common acception and not mitiori sensu Nicholas as Ierman and that the words taken together are actionable Ask Iustice to the same effect Whereupon Iudgement was affirmed except better matter should be shewn Monday next Johns against Leviston Mich. 1649. Banc. sup â—Ohns brought an Action of debt against Leviston upon an Assumpsit that the Defendant would enter into a judgement unto the Plaintif for so much monies as Sir Iohn Hall did owe unto the Plaintif if the Plaintif would take Common bail of him the Defendant Arrest of Judgement in an action upon an Assumpsit if Hall should dse before such a day and for not performing this promise the Action was brought upon non Assumpsit pleaded there was an issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement and shewed that it doth not appear that there was any notice given by the Plaintif to the Defendant how much mony was due to the Plaintif from Sir Iohn Hall as there ought to be Roll chief Iustice answered You did undertake to know at the time of the Assumpsit how much mony he did owe and notice is not necessary Notice and if it were he might have gone to Sir Iohn Hall to tell him and so it shall not only be intended to be in the knowledge of the Defendant himself but that he might have also knowledge of it by others Ierman Iustice doubted but Nicholas and Ask Iudges were of Rolls opinion and the Plaintif ordered to take his Iudgement if better matter were not shewen Custodes Libertat c. against the Inhabitants of Outwell Mich. 1649. Banc. sup THis Case was again moved Exceptions uâ—on an order of Commissioners of Sewers and answers to them wherein upon a presentment made to Commissioners of Sewers an order was made by them to reimburse the Dike-réeves for mony expended in repairing a Sea wall by laying a tax upon divers Vills amongst which Owtwell was one divers exceptions had been formerly taken to the presentment and order At this time it was 1. objected that the Commissioners cannot alter the usual custom for making the tax as they have here done and therefore their Order is not good It was answered that there is no custom here presented but if there be yet the tax cannot be laid generally upon the Vill but distributively for every one of the inhabitants have not an equal share of the land nor are all the lands of equal goodness And there is no custom for the Vill of Owtwell to approtion the tax so that they have no authority to doe it Windham on the same side said that there is no prescription or custom here found and so the tax ought to be ruled by the Common Law and other Towns ought thereby to be Contributory which receive benefit by the making of the bank and the Commissioners of Sewers have not here pursued the direction of the Statute of Sewers as they ought to doe And here the presentments upon which this order for the tax was grounded were made by three Iuries of several Hundreds and the breach to be repaired doth not appear to be within any of the Hundreds whence the Iuries come as the Statute doth direct neither is it shewed how the inhabitants are chargeable whether by tenure or custom or how else Holhead on the same side said It is not said how the lands are lyable to the tax 1. It is not shewed in what part of the Poe-Dike the breach hapned Maynard on the other side said that the Commission of enquiry finds by what default the breach happens but they cannot tell how many acres every one holds to charge them several and it may be intended that they hold joyntly and it shall be intended that the lands are lyable to
are only put in agrravation of dammages 7 H. 6. f. 34. and so prayes judgement for the Plaintiff Green of Councell with the Defendant prayed the Writ might be abated Because 1. here is not any thing laid that the Defendant hath positively affirmed the Plaintiff to be a Bankrupt 2ly There are general words in the former Action namely alia enormia which words do comprehend the matter for which this Action is now brought and he denyed the differences taken by the Councell on the other side And it doth here appear to the Court that the former Action of Trespasse was brought for the same things and damages were therein given for them and it is unreasonable to punish one twice for one and the same offence and the averment is good and doth shew that both Actions are for one and the same cause and he hath recovered damages already for all the wrong he sustained and here is no conversion alleged in the Case nor is it vi et armis and the Law hates double vexation 2. H. 6. f. 54. Brook brev 397 3 H. 7. 4. Brook brev 77. and damages might well enough be recovered in the first Action for all the damages sustained 19 H. 6. f. 44. And if this Action now brought had been brought for calling the Plaintiff Bankrupt the Action would have lien but not as it is here brought and one entire Action shall never be divided to put the party to a double vexation as it is in our case 41 Ass pl. 16. Brook brev 309. â— rep Hudsons case and in the first Action the words alia enormia were purposely put in that all matters touching that Trespass might be brought in question to encrease the damages 9 E 4. Brook Tresp f. 1â—9 and so all the damages were recovered in the former Action And he agreed Laicons case put by Shafto that the Plaintiff might recover damages as well for the value of the Sheep as for the chasing of them and prayes the Writ may be abated Roll chief Iustice said it is hard to maintain Laicons case for cepit er abduxit intends that the owner hath not the Sheep again otherwise it would be if the Action had been for the driving of them only And Mr. Shafto hath taken a good ground viz. that the Actions are for severall things and the Declaration is in part but an inducement to increase the scandall and to prove it and the words alia enormia shall not be intended of collateral matter but of matter incident to the Act done And one and the same thing may give several causes of Action and one Action is not to be confounded with another Action Ierman Iustice said Laicons Case was not like this Case for the question here is whether the Plaintiff can recover damages in this second Action which he hath by intendment recovered in the former Action and he inclined that it may be so here and that there is a recovering of the same damages in divers manners for the same thing Nicholas Iustice said he may bring severall Actions although he might have joyned them both in one Ask Iustice said That one Act may be divided into divers Actions and so it is here and well enough Roll chief Iustice said the Plaintiff in this Action cannot recover damages for his Goods so that this Action is brought for another matter Therefore plead in chief if cause be not shewed to the contrary for the Action doth well lye Meers against French Hll. 1649. Banc. Reg. IN an ejectione firmae Arrest of judgement in an ejectione fiâ—â—ae and a verdict for the Plaintiff The Defendant moved in arrest of Iudgement that there is no certainty in the Declaration neither of the place nor of the quantity nor of the quality of the Land whence the Plaintiff was ejected for it is eâ—dnobus Acris fundi Anglice a hopground which is not warranted by the Latin and so it is incertain and it is also dimisit unum croftum and a peice of Land and the quantity is not expressed for it is per estimationem sive plus sive minus medietatem sive unam partem is also incertain Twisden answered it was certain enough because it is expressed by a certain name Declaration Grant But Roll chief Iustice said it is good in grants but not in a Declaration for there is required more certainty and the Anglice here doth not help it for the Anglice is not to interpret a Latin name by which it is called And the sive plus sive minus is also ill but if it had been so many Acres per estimationem it had been good Therefore advise better of it Antea Vaux and Vaux against Draper Hill 1649. Banc. sup Entred Trin. 1649. rot 1104. VAux and Vaux brought an Action upon the Case against Draper Arrest of Iudgement in an action upon the case upon a promise upon a promise and declared that the Defendant in consideration of ten pounds paid by the Plaintifs unto the Defendant did assume and promise unto the Plaintifs to procure certain Cattel of the Plaintifs taken from them by a third person to be redelivered unto them by such a time and for not performing this promise they brought their action Vpon Non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintifs after this case had béen twice spoken unto The Defendant moved in arrest of Iudgment that thâ—â— Action was not well brought joyntly by the Plaintifs but that they ought to have brought two several Actions Joynt action in regard that the promise upon which the Action was founded was not an entire promise but was a several promise made to each of the Plaintifs The Councel on the other side prayed for Iudgement and said the promise was intire made to both and not several and so the Iury have found it which shall be intended to be true and if it should not be so it would be disadvantagious for the Defendant Hales said on the other side that the assumpsit is several and the acts to be done by the Defendant to the Plaintifs are several although the assumpsit sounds as a joynt assumpsit Roll chief Iustice said That the Consideration given is entire and cannot be divided and there is no inconvenience in joyning in the Action in this case but if one had brought the Action alone it might have been questionable Nicholas and Ask Iustices of the same opinion But Jerman Iustice differed and said that they are several promises viz. to deliver such Cattel severally to each of them as did belong properly to them and so there must be two several Actions But Iudgement was given for the Plaintif except better matter shewed Antea Spry against Mill. Hill 1649. Banc. sup Pasch 1649. rot 208. IN a Writ of Error brought to reverse a Iudgement given in a Trover and Conversion at Launceston in Cornwal upon a nihil dicit Error to reverse a
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
not well pleaded for it is pleaded too generally and not in the several circumstances thereof as it ought to be The Court commanded the Record to be read and upon Dyer of it answered That 2 Churches united by the Statute are both of spiritual promotion And the Statute of 12 Eliz doth not repeal the Statute of 38 H. 8. But let the party shew cause why the Iudgement should not be reversed Repeal and let us see a book Burton against Low Pasc 1649. Banc. sup Mich. 1649. rot 27. AN Action of Debt was brought upon a Bond taken by a Sheriff Dâ—muâ—â—er to a plea in debt upon a Sheriffs Bond. for the Defendant to appear in Chancery upon an Attachment issued out thence against him The Defendant pleads the Statute of 23 H. 6. That the Sheriff ought not to take Bonds of any but in speciall cases and that this Bond is void because it is taken against the Statute To this plea the Plaintiff demurred The question was whether an Atatchment out of the Chancery be within the Statute of 23 H. 6. The Court ordered cause to be shewn why Iudgement should not be given for the Plaintif upon this Demurrer Postea Edwards against Fallowes Pasch 1649. Banc. sup EDwards brought an Action upon the Case against Fallowes for speaking of these words of him viz. Arrest of Iudgement in an Action for words Edwards hath stollen my Axe from my Wood Pen and for causing him to be bound over to the Quarter-Session It was moved in Arrest of Iudgement that the words were not Actionable But the Court held they were actionable and gave Iudgement for the Plaintif Nisi causa c. Viccarye against Barns Pasch 1649. Banc. sup rot 1724. VIccarye being a Mercer by his Trade Arrest of Iudgement for words brought an Action upon the Case against Barns for speaking these words of him viz. Thou art a Cuckold and a Cuckoldly Rascall and dost owe more than thou art worth and are not able to pay thy debts Vpon non culp pleaded and an issue joyned and a verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable for for the first part of the words they are clearly not actionable and for the latter words they do not imply any shifting fraud or falshood and so cannot imply him to be a Bankrupt for though he doe owe more than he is worth and is not able to pay his debts yet he may be an honest man and he may have credit and friends to support him in his trade Apes and More Pasch 15 Car. and Iones and Iacob â—4 Car. The Court answered here is no fraud or deceipt implyed which do make a Bankrupt within all the Statutes touching Bankrupts and if there be a special loss alleged the words will be actionable otherwise not Bankrupt But let Iudgement stay till the other side move and bring us a book for the words are worthy consideration Postea Barnestone against Gale Pasch 1649. Banc. sup AN Action of Trespass was brought for chasing of the Plaintifs Hogs Arrest of Iudgement in Trespass the Defendant by way of justification pleads a special plea viz. That he did hunt them with a Dog by the command of his Master because the Plaintif did put them into his Masters ground to eat the Acorns there The Plaintif replyed that he had Common there Vpon this an Issue was joyned and a Verdict found for the Plaintif Replication The Defendant moved in Arrest of Iudgement upon this exception that the Plaintif in his replication hath not answered the bar for he prescribes only for Common of Pasture and pannage is no pasture and so he hath no right to the Acorns But Roll chief Iustice said If they have cause to eat the Grass they may also eat the Acorns there for they may be on the grounds and therefore it is a good justification And therefore let the Plaintif have Iudgement except cause be shewn to the contrary Bolton against VVills Pasch 1649. Banc. sup AN Action upon the Case was brought upon an indebitatus Assumpsit for a hundred and ninety Weathers sold by the Plaintif unto the Defendant at 18 s. Arrest of Iudgement in an Action upon the Case upon an Assumpsit a shéep which in all amounts to 190 l. Vpon an Issue joyned and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the Declaration is not good but mistakes the promise for the Weathers promised to be paid for do not amount to the sum for which the Declaration is laid And also the issue is taken upon the immaterial part of the plea and the matter well pleaded is waived The Court answered That mistaking of a Iudgement is a mistake of the Clark and is not material Amendment but here the Declaration it self is mistaken and that is material for the Action is grounded upon the promise in Law upon the sale of the Shéep Declaration and not upon any new Contract and by the sale there wants 2 s. in every Sheep to make up the sum demanded therefore the Declaration is repugnant Nil capiat per billam nisi c. More against the Earl Rivers Pasch 1649 Banc. sup Mich. 1649. rot 588. VVIlson of Councel with More the Plaintif argued against the Plea of Péerage pleaded by the Earl Rivers as it is pleaded and took these Exceptions Argument against the plea of Peerage 1. It appears not here by the Retorn by what Warrant the Earl was committed and brought hither and so he hath no day in Court and so the Plea is not good 2ly It is not shewed by virtue of what Warrant he was taken 3ly The Plea is 1. In abatement of the writ 2ly In avoidance of the Act of the Iudge and the latter ought not to be questioned by Plea 3ly There is no Plea but bare words for he pleads the Common Law 4ly He pleads his Patent as Earl only by way of Argument 5ly He ought to shew the writ under the Seal testifying the matter 8 H. 6. f. 9. 6ly The investiture of the Earldom is the livery and seisin of the Earldom and he hath omitted the pleading the Ceremonies of the investing and so he doth not shew that he is an Earl By the Statute Law Capias viz. of E. 3. a Capias was given in debt and before that a Summons was the process The Councel on the other side said they had demurred to the Plea Summons and shewed the cause of their Demurrer but the Court reproved them because they had ruled the matter in Law should be argued at the Bar to enform their own Iudgements Adjournatur Postea Syms against VVilson Pasch 1649. Banc. sup Pasch 23 Car. rot 120. SYms brought an action upon the Case upon the Statute of Monopolies against Wilson Demurrer to a Plea in Bar in an Action upon the case The Defendant pleaded
writ of Error upon an exception taken to it as it was entred in the Record but because it was but a mis-entry the writ it self being right Amendment the Record was ordered to be amended by the Writ Roberrs and Tucker Trin. 1650 Banc. sup Pasch 18. Car. rot 116. THe Court was moved to quash a writ of Error because the writ was to remove a Record coram Majori et Recordatori To quash a Writ of Eror whereas the Record certified was a Record coram Majori et Deputato recordatori Roll chief Iustice the Record is not well removed why may you not have a new Certificate upon the same writ But that cannot be and therefore you must have a special writ directed to remove the Record before the Maior and the Deputy Recorder Alteration for if there be a special cause to alter the usual form of a writ the Cursitors ought not to hold themselves to the old presidents but are compellable to alter them if the case require Abatement Therefore let the writ be abated and take another Writ Vid. anteâ— Shertlife against Tymberlye Trin. 1650. Banc. sup Hill 1649. rot 438. SHertlife brought an Action of Debt against Tymberlye upon an Obligation Demurrer to â— Plea in debt upon an Obligation to save harmless the condition whereof was that the Defendant should save the Plaintif harmless from such a person should release unto him all his right in certain goods The Defendant pleads that he had saved the Plaintif harmless and had released unto him all his right in the goods and to this plea the Plaintif demurred and shews for cause that the Defendant ought to have shewed how he had saved the Plaintif harmless because the condition was in the affirmative To which the Court agreed because he might have pleaded generally in the negative viz. non damnificatus and that had béen good and therefore judgement was given against the Defendant Non damnificatus Hobson against Hudson Trin. 1650. Banc. sup HObson brought an Action upon the Case against Hudson for these words Thou wentest to the Wells to be cured of the Pox Arrest of Judgement in an Action for words The Plaintif had a Verdict against the Defendant who moved in Arrest of Iudgement that the words were not actionable because they were too general and uncertain But Roll chief Iustice and Nicholas and Ask Iustices held they were actionable But Ierman Iustice doubted because the party that went to the Wells to be cured might suspect he had the Pox though he had them not But Iudgement was given for the Plaintiff Elsy agginst Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. ELsye brought an Action upon the case against Mawdit for speaking these words of him Arrest of judgement in an action for words Thou Sirrah art a rogue and a run-away rogue and didst run away from Oxford and art a rogue upon Record at Oxford The Plaintiff upon not guilty pleaded had a verdict the Defendant moved in arrest of Iudgement that the words were general and uncertain and not actionable the Court thereupon stayed Iudgement till the Plaintiff should move The Plaintiff at another day moves by Hales of his Councell for Iudgement who said that the words are actionable or at least some of them for thou art a rogue upon Record are actionable words and that is part of the words The Court enclined also that they were actionable yet would advise Postea The same Term Iudgement was given for the Plaintiff Chase and Iones against Lovering Trin. 1650. Banc. sup CHase and Iones brought an Action upon the case against Lovering Arrest of judgement in an action upon the case upon a prâ—mise upon a promise made by the Defendant to the Plaintiffs to pay unto them 84 l. out of the fraight of a Ship and for not paying it the Plaintiffs bring their Action Vpon non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintiffs The Defendant moved in arrest of Iudgement allegeth for cause that the Plaintiffs averment in their Declaration of the non payment of the 84 l. is not good Averment for it doth not appear by the averment that there was any fraight due for the Ship out of which the monies were to be paid Roll chief Iustice answered that the Plaintiff ought to have averred that there were monies due for the fraight of the Ship otherwise how can it be known whether there be any monyes due to be paid out of them therefore the averment is very incertain to whom Ierman Nicholas and Ask Iustices agreed Roll Chief Iustice added that it is part of the promise that the mony shall be paid out of the fraight and as the averment is the matter cannot stand together and here is no demand for the monyes to be paid out of the fraight Therefore against the Plaintiff let there be a nil capiat per billam entred Blackden against Harvye Trin. 1650. Banc. sup Hill 1649. rot 928. BLackden brought an Action upon the Case upon an indebitatus assumpsit to pay unto him 9 l. upon delivery of certain Cloath against Harvy as Executor of I. S. Demurrer upon a plea af er imparlance The Defendant appeared and imparled and after imparlance pleads in abatement of the Writ that I. S. made other Executors together with the Defendant who ought to have been named in the Writ The Plaintiff denturs and for cause shews 1. That the Plaintiff doth not shew what goods the Defendant administred nor at what time he administred any as he ought and 6. lac Edwards and Foyes case was cited to prove it A second cause of the demurrer was that the plea in abatement of the Writ is after imparlance which is not good because it is touching a thing in the Defendants knowlege and so he might have pleaded it before imparlance as it is 35 H. 6. f. 36. Ierman Iustice absente Roll answered that the first exception is not material Abatement but he held that the second was a good exception and that the Defendant cannot plead in abatement after imparlance for by his imparlance he hath admitted the Writ good Therefore'plead in chief if cause be not shewed to the contrary on Friday next VVinter against Barnard Trin. 1650. Banc. up VVInter brought an Action upon the Case against Barnard Arrest of judgement in an action for words and declared that upon the rumor that a Bastard Child was drownded The Defendant said to the Plaintiff I do verily believe the Bastard Child was thine nay it was thine upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgment that the words are not actionable as they are laid for that it doth not appear that there was a Bastard Child drowned for the Declaration is that there was only a rumor that a Bastard Child was drowned But all the Court
agreed that by the conference set forth in the Declaration it is agreed that there was a Bastard Child and it is a scandal to the party whether there were a Bastard Child or no and if there were none you ought to shew it on the Defendants part Therefore let the Plaintiff have his Iudgement Elsy against Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. THe Case of Elsy and Maw dit was again moved Arrest of judgement in an action for words wherein the Plaintiff had a verdict against the Defendant in an Action upon the Case brought against him for speaking these words of him Thou Sirrah art a rogue and a run-away rogue and didst run away at Oxford and art a rogue upon Record at Oxford upon a motion in arrest of Iudgement Iudgement was stayed till the Plaintiff should move Hales now moved for Iudgement because the words are actionable for they make the Plaintiff to be such a Rogue as may be endicted within the Statute and receive corporal punishment But Twisden denyed it Roll chief Iustice held it was within the Statute Yet the Court would advise In this case Ierman Iustice said That if one say that another is forsworn in a Court of Record the words are not actionable but if he say that he is forsworn upon Record the words are actionable But Roll chief Iustce held there was no difference between the words but that they are both Actionable Antea et Postea More against the Earl Rivers Trin. 1650. Banc. sup Mich. 1649 rot 588. MOre Arrested the Earl Rivers by a bill of Midlesex in a plea of Debt The Earl was therupon brought before Mr. Iustice Nicholas to put in bail Earl Rivers case touching privilege of pecrage and not being able to put in sufficient bail according to the course of the Court was committed to the custody of the Mareschal of the Marshalsea the Earl being in custody brings himself into Court by a habeas corpus and there pleads his privilege of his peerage and sayes that he ought not to be arrested and demands Iudgement of the Writ and prayes to be delivered to this the Plaintiff demurred Hales of Councel with the Earl argued to divers points but I could not here him well But the main question he insisted upon was whether that by taking away the house of Lords in Parliament whereby their voice and place in Parliament was gone the Privilege of his peerage not to be arrested for Debt was also taken away and he argued that it was not for he said that at the Common Law no capias did lye against a Peer Capias and the Statute of E. 3. which gave a capias for Debt against others did not give it against a Peer and it doth appear here that the Defendant is really an Earl and not in nomination only and he cited 27 H. 8. f. 22. b The reasons he said why an Earl had the privilege not to be arrested are two The first is in respect of the dignity of his person being called comes a comitando rege as some have thought and he is called by the King consanguineus noster The second is in respect of the presumption of his sufficiency of estate in lands to be summoned by and not by reason of his place in Parliament for they have the privilege not to be arrested as well in the vacancy of Parliaments as when the Parliament doth sit and the privilege of Parliament is that he shall not be sued but the privilege of peerage is that he shall not be arrested in his person and so they are distinct privileges and by taking away the Lords house the former privilege is taken away but not the latter and this privilege annexed to the person not to be arrested may belong to a person that hath not the privilege of Parliament as for example unto Widowes of Peers which could not be arrested and yet had no place in Parliament so that the excluding them from the Parliament doth only take away their privilege of Parliament and not their privilege of peerage and Nevlils case is that the privilege not to be arrested belongs to them in respect of the dignity of their persons 9 Rep. Salops case And it hath been a question whether comes be so called a comitando rege or in respect of their Counties whereof they were Earls and I conceive the latter derivation is the truer and then the taking away the King takes not away their privilege for the Counties remain 2ly Earls have by intendment sufficient fréehold to enfcore them to come in and answer at this day and therefore are not to be arrested and imprisonment of a mans person for debt was but a suppliment to make him answer where he had not sufficient freehold which we cannot intend here Nat. brev f. 93. And an Earl shall be amerced higher than another man in regard of the presumption of his freehold and Earls are called majores Barones in this respect 7 E. 4 Nevils case and the widow of an Earl had the privilege not to be arrested for the two very reasons that her husband had it so was it of a Bishop Abbot and Prior of England but otherwise it was of a Bishop that had a Bishoprick out of England And the late Statute that takes away the Kingly office doth not take away their names and dignities nor the presumption that they have fréeholds and therefore they are not to be arrested and their will be since the Act no more a failer of right than there was before and so he prayed the Writ might be abated Abatement Roll chief Iustice answered your Clyent ought to have prayed the Writ might have abated before he was turned over to the Marshall of this Court◠for then he was in Midlesex where he was arrested but now it is too late for now he is in custodia Marescalli Declaration and any body that hath cause of Action against him may declare against him Ierman Iustice said that the Writ is now determined which you pray to have abated so your prayer is to no purpose Roll chief Iustice said that the dignity of the person of an Earl may relate to him as he is Peer of the Parliament and the other presumption that he hath sufficient freehold may also fail but it doth not appear here by averment that he hath not freehold therefore it may be a question whether there shall be intended a sailer of Iustice for want of freehold if the party should not have been arrested and he agreed that an Earl as a Peer of Parliament had a double privilege one of his person to be free from arrests Arrests the other of his Estate to be free from sutes and he said if it had appeared by averment that the party had freehold it had been good without doubt to free him from arrests Ierman Iustice said he is now in custodia and the Declaration against him is good and now
Iustice held that a Bond given to appear upon an Attatchment out of the Chancery is within the Statute but it hath been heretofore a question whether a Serjeant at Arms of Wales were within the Statute but it hath been since ruled that he is not and here is a material variance in the Bond which makes it void and neither the upper Bench nor the Chancery are fixt Courts Obligation and therefore the Defendant ought not to be bound precisely to appear at VVestminster and then to add ubicumque fuerit is a material variance Chancery Variance and makes the Bond naught Ierman Iustice to the same effect and said that the Chancery may sit at any time out of the Term when they please and their not sitting in the Vacations is for the ease and conveniency of the people Nil capiat per billamn si c. Antea Paine against Prestny Mich. 1650. Banc. sup PAine brought an Action upon the case against Prestny Arrest of judgement in an action for words for speaking these words to a Constable of him Take charge of him and carry him away for I lay flat Felony to him and for speaking these words to the Plaintiff himself I will make you hold up you hand at the Bar upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the words are not actionable but the Court held them cléerly actionable and ruled the Plaintiff to take his Iudgement except other cause were shewed to the contrary Friday following Popham against VVhite Mich. 1650. Banc. sup VPon a verdict found for the Plaintiff in a Trover Conversion Arrest of judgement in a Trover and Conversion the Defendant in Arrest of Iudgment took exception to the Declaration because the Plaintiff had declared of a Trover Conversion de decem arboribus wheras the trees were Tymber trees that were felled so they are not well expressed for the word arbor properly signifies a tree that grows and not one cut down according to the old verse Arbor dum crescit lignum dum crescere nescit and so a Trover cannot be brought pro arbore But Roll chief Iustice said that they were well enough expressed by the Declaration Declaration Description and that they ought not to be too strict in scanning some words where the thing is well described Goffs Case Mich. 1650. Banc. sup CLement Goff of Greenwitch in Kent A pardon for Felony pleaded and allowed arraigned of felony at Maidstone in Kent and there condemned was brought to this Bar and there it was demanded of him by the Clark on the criminal side what he could say why he should not suffer death according to his Iudgement whereupon the Prisoner pleaded he had a pardon and produced it and it was read openly the Prisoner kneeling on his keees in the mean time after reading of it he was asked what it was he demanded besides of the Court he answered that he prayed his pardon might be allowed which after Ierman Iustice had made a grave speech to exhort him to a better carriage for the future was done accordingly VVood against Topham Mich. 1650. Banc. sup THe case between VVood and Topham being an Action of Trespasse Arrest of judgement in trespass quare filium et heredem rapuit maritavit quare filium et heredem suum rapuit et maritavit was again spoken unto and in arrest of Iudgement Green took these exceptions to the Declaration 1. That it is too short because that after the words quare filium suum heredem rapuit maritavit there ought to have been added cujus maritagium ad ipsum pertinet for else it appears not that the Plaintiff hath cause of Action Instit f. 20. 35 El. Child and Towrs case Banc. Reg. 2ly The Declaration doth not say filium suum apparentem which it ought to do because the Father is alive 3ly It doth not expresse the Heir to be infra aetatem 4ly It doth not say the Heir is in custodia sua 5ly It doth not shew that the Heir was not married before 6ly It doth not shew that the Plaintiffs Father is dead 12 H. 4. f. 16. Broo◠Tit. Trespasse 101 Nat. brev 142. Reg. 163 Nat. Brev. 140. 20 H. 6. f. 44. And he said that a Declaration ought to be certain but that here was no certainty by reason of the former exceptions Declaration Trespass VVilmot on the other side said the Declaration was certain enough and according to the presidents and cited the Register f. 88 89. ◠rep Ratcliffs case Roll chief Iustice said It is a Trespasse to take away a mans Son and Heir although he be not within age but if it be another Son it is not so Nicholas Iustice to the same effect But because the Court was not full in regard that the damages given by the Iury were excessive the Court deferred to give Iudgement that time and perswaded the Plaintiffs councell to go to a new new try all Antea et Postea Marshall against Ledsham Mich. 1650. Banc. sup MArshall brought an Action of Debt as an Administrator against Ledsham Arrest of judgement in debt by an Administator and obteins a verdict against the Defendant It was moved for the Defendant in arrest of Iudgement That the Plaintiff had not shewed in his Declaration by whom the Letters of Administration were granted unto him as he ought to do according to the books of 26 H. 6.29 35 H. 6. The Court answered that he ought to have set it forth and therefore the Plaintiff might have demurred to the Declaration but it now being after a verdict Demurrer the question is Whether that fault be not helped by it And therefore they would advise Postea VVats and his wife against Lord. Mich. 1650. Banc. sup VVAts and his wife brought an Action of Trespasse of an Assault and Battery against Lord Arrest of judgement in an Assault and Battery and obtein a verdict The Defendant moved in arrest of Iudgement That the Declaration was by the Baron and Feme for an Assault and Battery made to the Feme and they also declare that the Defendant alia enormia eis intulit which ought not to be for the wrong being but a personal wrong done to the person of the Feme only could not be said to be done to the Husband To which Roll chief Iustice agreed Fairefax against Fairfax Mich. 1650. Banc. sup IN a writ of Error brought to reverse a Iudgement given in a writ of Dowr these exceptions were taken Error to reverse a judgment in down 1. That the original was not well returned for their appears not to be any return of the Proclamation of the summons and though the party do appear yet it was said that it is not helped thereby 2ly The demand is incertain for the demand is de tertia parte decimarum garbarum
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
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
had where the Feme being Covert is not Tenant to the praecipe she shall be bound by it and he said she is not In other cases the party may be bound by estople namely where he might have pleaded to the writ or might have counterpleaded the voucher but here the Feme is not subject to be admitted to these things 17 E. 3. f. 37. and the Feme Covert here is not so concluded by her admission that she shall not be admitted to speak against this recovery if she survive her husband neither are her Heirs concluded if she do not survive although peradventure as to the warranty they may be concluded â—0 Ass pl. â— 11 E. 3 Fitz. voucher 1432 E. 3. Fitz. estople 246. 21. E. 3 13. and the recovery here is not duely had because there is no tertenant Roll chief Iustice said it is not to be questioned whether a recovery bind a Feme Recovery Examination Averment for it is the Common practice 2ly It is not necessary to examine a Feme Covert upon suffering a recovery although it be a prudentiall thing to do it but if it be not done it is not averrable that it was not done but the single question material here is whether the Feme be Tenant to the praecipe or not Feme Covert so that she shall be estopped to speak against the recovery and he held she was estopped for she joyns in the recovery with her Husband and here is no default made by the Baron and now the record is perfect and a thing contrary to it ought not to be averred against it but before the Record was perfect she might have pleaded Plea and the recompence in value here shall go to the Heirs of the Feme and the Tenant for life is also bound by this recovery and the Feme is party and also privy to the recovery Party and privy and therefore if it will bind her it will bind her Heirs also If a stranger had been Tenant to the praecipe and the Baron and Feme had been vouched the Feme had been bound and this is a stronger case and this case may concern many mens estates and therefore such recoveries are not to be questioned Therefore let the Plaintiff have his Iudgement nisi Hill 1651 Banc. sup ONe Turner and Marian were Bail for one by the names of Turner and Mary Motion to alter the name of a Bail Amerdment Bail the Court was moved that the name Mary might be made Marian But Roll chief Iustice answered let the party come and find other Bail for upon the matter this is no Bail Hill 1651. Banc. sup AN Endictment was removed by a certiorari into this Court For a procedendo and the Court was moved for a procedendo because no Bail was put in here Roll chief Iustice answered If no Bail be put in you may proceed below without any procedendo Hill 1651. Banc. sup THe Court was moved to supersede an Execution against one quia erronice To supersede an execution because he was taken in Exeeution whereas there was no declaration given against him in the Term time as it ought because the party was in custodia and the Declaration against him was upon the by viz. at another mans sute and not at his at whose sute he was in custody Roll chief Iustice answered if it be a Declaration on the by it ought to be given in the Term time Hill 1651. Banc. sup VPon a rule to shew cause why an attatchment should not be granted against Cox an Attorney of this Court and Maior of Newberry Cause why no attatchment for issuing out of Execution upon a judgement given there after a writ of Error brought and allowed there Wild shewed for cause that the Malor was enformed by Councell that the Record was not removed thence because the writ of Error was not good This was allowed for cause and the former rule discharged quod nota Hill 1651. Banc. sup LEtchmore moved the Court that the word publicae might be put into an Endictment which was removed hither by a certiorari To mend an endictment Amendment Fine But the Court answered it could not be but because the endictment was of another Term the Clark of the peace was fined at 10 l. for his carelessenesse and grosse oversight Pasch 1652. Banc. sup THe court was moved for a habeas corpus For a habeas corpus for one committed by an order of Sessions of the peace Surety for one that was committed to prison by an order of Sessions of the peace untill he should find sufficient suretyes for the peace whereas he had tendred suretyes which would not be accepted but extraordinary suretyes were required such as he was not able to procure Roll chief Iustice answered a thousand pound bond may be required for the keeping of the peace as the case may stand viz. if the party to be bound be a dangerous person Yet take a habeas corpus but be sure you bring good suretyes Pasch 1652. Banc. sup AN action of debt was brought against one for 50 l. due for divers pieces of lixnen cloath sold to the Defendant Wager of law waived and a plea put in The Defendant was ready at the Bar to wage his Law but the Court being enformed that the Defendants wife kept a shop and used to buy and sell by her husbands privity and allowance and that these parcells of cloath were bought by her to furnish her shop and that the Defendant her husband although he was a Sea man and medled not in buying and selling of any of the wares in the Shop yet his wife did it by his allowance Roll chief Iustice advised the Defendant to take heed he waged not his Law for that he could not do it with a good conscience because his allowance of his wifes buying the wares was all one as if he had bought them himself and counselled him to plead to which the Defendant consented and the ley gager was waived by consent of the partyes and an emparlance given till the next Term. Emparlance Dudley against Born Pasc 1652. Banc. sup THe Court was moved on the part of the Defendant that in regard Motion to put in security for costs denyed the Plaintiff had obteyned the cause between them to be tryed at the Bar that therefore he might be ordered by the Court to give security to pay the costs in case the tryal should be against him But the Court would make no such rule but said if he will not pay the costs in case the verdict be against him he shall take no benefit here afterwards upon it Garland against Yarrow Pasc 1652. Banc. sup Hill 1651. rot 1295. THe Plaintiff brought his Action upon the case against the Defendant for speaking these scandalous words of him Arrest of Iudgement in an Action for words viz you are a knave and keep a bawdy house after a verdict for the
Plaintiff it was moved in arrest of Iudgement that the words are not actionable 1. Because the words spoken are of spiritual conusance and punishable in the Ecclesiastical Court and not at the Common Law 2ly The party may keep a Bawdy House and not know it to be such and then he is not punishable for it and so cannot be prejudiced by the speaking of the words 3ly Case There is no Statute against keeping of a Bawdy house as the Declaration lays it but for keeping of a Common Bawdy house But Ierman Nicholas and Ask Iustices Roll chief Iustice being absent held that the words are actionable for the keeping of a Bawdy house is an offence punishable at the Common Law as being a misdemeanor and breach of the peace and therefore ordered judgement to be entred except cause should be shewn to the contrary Saturday next Green against How Pasch 652. Banc. sup Entred Hill 1651. rot 1295. Q. PAnel moved for How the Defendant to arrest judgement after a verdict given against him for Green the Plaintif in an action upon the Case brought for speaking these words of her viz. Arrest of Iudgement in aâ— Acti â—n upon the Case for words You are a Whore and a Iade and a strumpetly Whore and I will prove you a Common Whore his Exception was that the words are not in themselves actionable for they are but words of choler and heat and the Plaintif is not brought within danger of the late Statute made against whoredom by the speaking of them and he cited for authority Freeman and Childers case Trin. 1651. rot 45. where these words viz. You are a Whore I will prove you an arrant Whore were adjudged not actionable The rule was to stay judgement till the Plaintif should move Barcock against Tompson Pasch 1652. Banc. sup Mich. 1650. rot 444. IN an Audita querela the Case was this Where an Audita querela lies for the Bail upon an erronious judgement against the principal An Action of Debt was brought against the Principal and a judgement upon a nihil dicit obtained but no capias ad satisfaciendum issued forth against him Afterwards 2 scire facias were taken out against the Bail and 2 nâ—chils thereupon returned and thereupon judgement was given against the Bail who thereupon brings his Audita querela The Question was whether the Audita querela did lie or not in regard that the scire facias issued forth against the Bail before any capias ad satisfaciendum was taken forth upon the judgement upon the nihil dicit against the Principal Green of Councel with the Defendant held that the Audita querela did not lie because that the party hath other remedy to relieve himself and therefore the Audita querela lies not for that is given only where the other party hath no other remedy 21 E. 3. f. 12. Brook Audita quer 18. And besides here are two nichils returned against the party which do amount to a scire feci and so the party is warned and therefore he comes now too late to have his Audita querela for here is as much as a judgement by default after an appearance and here is no release and there is a judgement executed and in force and not reversed by the Principal Green and Le Grices case Pasch 39. Sir Francis Mores Reports Wild for the Plaintif held that the Audita querela did well lie because that no scire facias ought to have issued against the Bail before a capias ad satisfaciendum taken forth against the Principal And an Audita querela is in the nature of a sute in Chancery and the party comes soon enough here to be relieved though the scire facias be returned for the return thereof shall not bar him from his Audita querela although it be now too late for him to reverse the judgement by a writ of Error and the books 21 E. 3.13 and Kelw. 23 24. are in the very point And the party by the return of the 2 nichils is not in Court And in Mores Reports in Hobs and Todcasters case 38 Eliz. it is adjudged that an Audita querela doth lie Roll chief Iustice when one is Bail in the Common Pleas he is bound to bring in the body of the Principal Bail or to pay the debt And Pomeroys case is that until a Capias be returned against the Principal the Bail cannot forfeit his Recognisance Recognisance Forfeiture for the non-appearance of the Principal for the filing of the Capias is not sufficient but it must be returned And this was the antient course there and the Law so held to be but by usage of later times and out of indulgence shewed to the Bail it hath been held sufficient for the Bail to bring in the principal after the retorn of the Capias and now at this day out of greater indulgence afforded unto the Bail it is well enough if the Bail bring in the Principal at any time before the return of the second scire facias but after it is returned then it is too late for him to bring him in Error and that is the reason that in such Case a writ of Error lies not for the Bail to reverse the judgement against the Principal If a scire facias be brought against the Bail and he pleads that the Principal dyed before the return of the Capias against him it is adjudged to be a good plea for the Bail to discharge himself Plea but to plead he dyed after the return is not good And it is a good plea for the Bail in a scire facias brought against him to say that no capias was returned against the Principal And here is a good discharge in Law against the Bail But the question here is whether the return of the two Nichils be not a Bar to him now and that he hath not thereby lost his advantage to bring his Audita querela Audita querela because by the return thereof the party is supposed to have notice and therefore a writ of Error clearly lies not to reverse this judgement though it be upon a nihil dicit And as to that in as much as the party hath no other remedy to help himself and it is apparent that he is damnified by an undue judgment it is reason he should bring his Audita querela Barns and Corbets case The Bail cannot say the Principal hath paid the money if he have not an acquittance or matter of Record to prove it and in Sir John Mounsons case upon two nichils returned adjudged that the party might have his Audita querela and therefore the Plaintif ought to have his Iudgement Ierman Iustice dissented But Nicholas Iustice absente Ask agreed with Roll and said that for want of the return of the Capias the judgement was erronious and the 2 scire facias might be returned behind the parties back therefore it could not be said to be all
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
more goods it is not necessary to do it And the law should do wrong if he should not be first satisfied for now he is a lawfull administrator and also a creditor of a higher nature than the other and because he cannot bring an Action against himself for his debt therefore he may by law retain the goods in satisfaction And he may satisfie a debt upon a specialty before a debt due upon a contract although a sute were commenced for the debt due upon the contract so here he may retain the goods Roll chief Iustice Why shall not here the administration purge the wrong which he did as Executor of his own wrong It is true indeed that he shall not abate the writ by taking letters of administration but he may plead this plea in bar of the Action and here it doth not appear but he is rightly Executor Abâ—tement Bar. without doubt the plea here pleaded had been good to a stranger without letters of administration and the law shall supply the retainer to him here and there is no wrong to the Defendant at another day it was moved again and the Court held the plea good and ordered Iudgement for the Defendant nisi Strode against Homes Trin. 1652. Banc. sup Hill 1651. rot 999. STrode brought an Action upon the case against Homes Arrest of judgement in an Action for words for speaking of these words of him in relation of his office he then being Church-warden of St. Clements Parish in Oxford Thou art a cheating knave and hast cosened the Parish of 40 l. Vpon not guilty pleaded and a verdict for the Plaintiff It was moved in arrest of Iudgment that the words were not actionable because here was no special losse alleged by the Plaintiff nor is he in any danger of corporal punishment by speaking of the words Pasc 10. Iac. Hopper and Baker Roll chief Iustice answered the matter is not so much the losse of his office as the losse of his credit in being accompted a cheater At another day Crook Senior moved for Iudgement for the Plaintiff and said the words are actionable for a Church-warden is not meerly a spiritual officer but an officer by the Common Law and also by the Statute Yarly and Ellis case Sir Miles Fleetwoods case Hob. rep Bray and Haynes Crook Iunior on the other side urged that this is not an office of profit but of trouble and burden and no special losse is alleged Roll chief Iustice Officers which have no benefit by their offices have more need to be repaired if they be scandalised in their Execution of them and here the scandal is great losse to an honest man and what other remedy can he have to repair himself Case but by his Action on the case Ierman Nicholas and Ask of the same opinion And so Iudgement was given for the Plaintiff nisi Trin. 1652. Banc. sup VPon an Affidavit read in Court made by divers prisoners in the upper Bench-prison against Coronel Keyes a prisoner that he is very unruly Motion to remove a prisoner out of the upper Bench prison to Newgate denyed abuseth his fellow prisoners it was moved he might be removed to Newgate But Roll chief Iustice answered if he be unruly the Gaoler must put on irons upon him and kéep him safely there for this is no cause for us to remove him for he lyes there under many actions and we must not remove him to another prison Trin. 1652. Banc. sup THe Court was moved that the party might not have a tryal at the Bar untill he had paid costs upon being nonsute in a former action for the same lands Roll chief Iustice He shall not proceed to another tryal Against a trial at the Bar till costs paid upon a former nonsute Costs untill he have paid his costs for by this means we shall incourage men to be vexatious Freind against Baker Trin. 1652. Banc. sup VVIld moved to amend a Record wherein a Iudgement was given in the Common Pleas For amendment of a record denyed after the Record was removed by a writ of Error into the Chequer Chamber the fault to be amended was that there is day given over to the parties from Easter Term to Michaelmas Term and so Trinity Term is left out which he conceived was but a misprision of the Clark and but a miscontinuance in giving a wrong day to the parties 2 H. 7.11 22 E. 4.3 But Roll chief Iustice answered Discontinuance that this is the act of the Court and by your reason you may skip over 3 or 4 Terms one after another without any continuance The giving of a day more than is necessary is no discontinuance but here wants a day which makes it not a miscontinuance but a discontinuance and so was it adjudged 1 Car. at Reading Term. Nicholas Iustice cited 21 H. 6. f. 16. to be adjudged that it is a discontinuance Roll chief Iustice A miscontinuance is where one processe is used for another and so the processe is mistaken but this is a discontinuance and cannot be amended Amendment For this is not upon a writ of Error out of the Common pleas as we supposed it to be and that the Record had been amended there for then we would have advised whether we would amend it here Miscontinuance but it is upon a writ of Error brought in the Chequer Chamber upon a Iudgement given here Brock against Vernon Trin. 1652. Banc sup BRock brought an action of Debt against Vernon as an Executor upon a bond entred into by Vernon unto the Testator of the Plaintiff Arrest of judgement in debt upon a Bond. the Defendant acknowledgeth the bond but sayes that he gave another bond in satisfaction of that Bond unto the Testator which the Testator did accept of in satisfaction Plea Thâ—ng in Action The Court held this plea ill and that the party might have demurred upon it and needed not to have joyned issue and put it to the Iury for it is no good plea to say that one did accept of one thing in Action in satisfaction of another thing in Action and here the Defendant hath confessed the debt and therefore his plea being ill Iudgement ought to be against him and Iudgement at another day was given accordingly Buckstone against Shuâ—lock Mich. 1652. Banc. sup Entred Trin. 1652. rot 177. A Writ of Error was brought to reverse a given Iudgment in the Common Pleas upon an information Error to reverse a judgment in the Common Pleas upon an information for selling of Wine without licence for selling of Wine without licence contrary to the Statute The Error assigned was that the information was brought in the Court of the Common Pleas which is in the County of Midlesex whereas the offence is alleged to be done at Lambeth in the County of Surry which ought not to be as Davisons case is in Hob. rep Roll chief Iustice How do you prove this
of recital and not material and you have confessed the deceit by your demurrer and therefore let the Plaintiff have his Iudgement nisi Vpon which rule Baâ—ington at another day moved the matter again and urged that here was an assignment of papers mentioned which could not be for that it is a thing in Action which is not assignable nor can the Ordinance of Parliament give authority to assign a thing in Action Roll chief iustice Assignment The ordinance of Parliament doth give authority to assign the papers Latch the paper may be assigned Green The Action is brought for the deceit grounded upon the ordinance and it is not necessary for the Ordinance to name the Aldermens Christian names and these may be true bills though not subscribed which is the deceit here alleged Twisden on the other side said that the acquâ—ittance is in nature of a bill according to the intent of the Ordinance for it is not only an acquittance of discharge but to recover monies upon them and so the Defendant calls them and by the assignment the paper is assigned and the Action is grounded on the deceit and not upon the Statute Iudgement was given for the Plaintiff Burcher and Orchard Mich. 1652. Banc. sup BUrcher brought an Action upon the Case for words Arrest of judgement in an Action on the case for words against Orchard and his wife the Iury find that the Baron was guilty but that the Feme was not guilty Wadham Windham moved in arrest of Iudgement because that the Action is joynt and one of them is found not guilty and said it might have been otherwise if the Feme had been found gvilty and the Baron not guilty and cited 9 Ed. 4. f. 51. Yard on the other side said that the verdict hath made this exception good and if the Defendant would have taken any advantage of it he should have demurred to the Declaration Roll chief Iustice denyed the difference taken by Windham and said if any of the Defendants spake the words and be found guilty the Action will well lye and it is all one here as if the Defendants were two strangers the Action being joynt but the doubt is whether it being after a verdict this matter may be offered in arrest of Iudgement At another day Hales moved for Iudgement and said it was all one if any of the Defendants be found guilty as if both of them were found so and although it do appear by the Declaration that the Action could not be brought joyntly against them both because the wrongs are several and now one is found guilty and the other is acquitted 8 Ed. 4. f. 21. 11 H. 4. f. 5. 9 E. 4. f. 1. and damages are assessed against one only And now the verdict hath madei the Declaration good otherwise it had béen if both had been found guilty and entire damages given against both joyntly Latch on the other side said that the speaking of the words cannot be a joynt Act and therefore ought not to be so laid in one Declaration for they are severall Acts and severall offences as the words do proceed from them severally and this case is not like the case of a decies tantum nor the case of a joynt endictment against two for a joynt endictment shall be accompted as severall endictments and here if the Feme had been found culpable perchance it might have béen good because though the wise only speak actionable words yet the Action ought to be brought against the Husband and the Wife Roll chief Iustice The Declaration is not well laid for this cannot be a joynt speaking of the words by the Husband and Wife and therefore they ought not to be joyned in the Action therefore there ought to be several judgements and damages if you recover viz. One against the Husband another against the wife but here is a verdict found which helps it and this case is all one with the Case of 9 Ed. 4. for there the Declaration was not good as it is not here and here is not a verdict against both but only a discharge and he cited Rethorick and Chappels case where an Ejectment terrae haered is did not lie yet there by releasing of damages to the heir judgement was given for the land and here might have been a release of damages as to the wife if both had been found guilty but here in effect is a judgement but against one of the Defendants Ierman Nicholas and Ask Iustices to the same effect and so judgement was given for the Plaintif Luddington and White Mich. 1652. Banc. sup Mich. 1651. rot 458. LUddington brought an Action of debt upon a bill against White Demurâ—er to a plea in debt up on a Bill the Defendant pleaded that after the money became due he and the Plaintif did by parol submit to an award and that there was an award made that the Defendant should pay 8 l. to the Plaintif at such a house and thereupon the Plaintif should give him a general release and accordly he tendred the money to this plea the Plaintif demurred and for cause shewed that here is a submission by paroll pleaded after the day of payment expressed in the Bill which is not good being by paroll to discharge a debt due by specialty Discharge But Wild answered here were other things submitted besides this and that may make the submission good Roll chief Iustice I see not what authority you have for this Reference nor how it can be and 4 H. 6. if one be awarded before auditors to accompt this cannot be referred and here would be an inconvenience to take away a duty created by bond by paroll therefore let the Plaintif have his Iudgement Neve and Cross Mich. 1652. Banc. sup NEve brought an Action upon the case against Cross for charging him with felony Arrest of Judgement in an â—ction upon the Câ—seâ— in nature of a Conspiracy and causing a Constable to carry him before a Iustice of Peace and accusing him to the Iustice in these words viz. He did come to my door and set a Pistol to my Brest and demanded money of me and I for safegard of my life did give him what money he desired Vpon not guilty pleaded and a Verdict for the Plaintif it was moved by Fletcher of Lincolns Inn that the words were not actionable and therefore that the Plaintif ought not to have judgment and that for these reasons 1. Because there is but a matter of Trespass alleged in the words 2ly They are but argumentative and do not charge the Plaintif directly with felony and it may be the money demanded was due to the Defendant and the Iury have found all that which sounds to charge the party with felony against the Plaintif Twisden on the other side said that the words ought to be taken together and so they are actionable and ought not to be severed And the ground of the Action is for charging
him with felony and bringing him before the Iustice and speaking the words there Roll chief Iustice If the words found to charge him with felony the Action will lie and we cannot conceive otherwise but that he would have robbed the party and we ought not to divide the words for this were to argue a male divisis Case And you might have pleaded specially or have given the special matter in evidence Ierman Iustice differed but Nicholas and Ask Iustices agreed with Roll and so judgement was given for the Plaintif nill c. Smith and Ward Mich. 1652. Banc. sup IN an Action of debt upon an Obligation to stand to an award Arrest of Judgement in an Action of Debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of Iudgement that the Award was not good 1. Because here is money awarded to be paid to Baron and Feme whereas the Feme is no party to the submission 2ly Here is 50 l. awarded to be paid but it is not expressed for what or that it is to be paid in satisfaction of any thing 3ly The submission is of all matters in difference till April 1652. and the Award is of all matters till December following Latch answered as to the 1 Exception That the Baron did submit to the Award as well for his wife as for himself and the Award is to make an end of matters which doe concern the Baron and Feme 2ly It is not requisite to shew why the 50 l. is to be paid yet it is shewed here viz. for the ending of all differences 3ly It doth not appear by the Record that any matter is awarded but what is submitted Roll chief Iustice The Husband may submit for his Wife Submission and here is an Award on both sides and if the Award be good in part it is well enough nor is it necessary to shew why the money is to be paid Award for all differences are to be concluded upon payment of the money and the release is to be made after this therefore let the Plaintif have his judgement nisi Mich. 1652 Banc. sup THe Court was moved for a Certiorari to remove divers informations preferred by an Informer at the Sessions held at the Guildhall in London upon the Statute of primo Iac. concerning Leather Motion for a Certiorari Roll chief Iustice The Informations were exhibited before the Iustices of Peace but it is a question whether the Defendant cannot remove them I believe there are presidents to prove he may otherwise the Defendant might be prejudiced but enform us what the course is in the Common Pleas in such cases In the mean time we will advise VVall and his wife against Bye Mich. 1652. Banc. sup Pasch 1652. rot 70. IVdgement was given for the Plaintifs in an Action upon the Case brought in Bristow for these words spoken of the Wife Iudgement in an Action upon the Case for words reversed Error She is Lews Reads Whore and he knows her as well as her Husband This Iudgement was reversed upon a writ of Error brought in this Court because it did appear by the Record that the words were spoken before the late Act made against adultery and incontinency before which time such words had not been actionable Iennings and Downs Mich. 1652. Banc. sup Trin. 1652. rot 546. A Writ of Error was brought to reverse a judgement sur non sum informatus given in the Common Pleas in an Ejection firmae Error to reverse a judgement upon a non sum informatus in an Eject one fiâ—mae Certiorari The Error assigned was that it appeared by the Record that the Declaration was before the Plaintif had any cause of Action Wild answered It doth not appear so but if it do then we say that there is a wrong original certified and we pray that we may have a new Certiorari to have the true original certified Roll chief Iustice Take it for it is in affirmance of a Iudgement which ought to be favoured VVebb and VVashborn Mich. 1652. Banc sup VVEbb brought an Action of Trespass for entring into his house and taking away divers goods against Washborn Arrest of Iudgement in Trespass and obtains a Verdict against him It was moved in Arrest of judgement and these Exceptions taken to the Declaration First That the Plaintif had declared for the taking away of a Trunk with writings and doth not shew what the writings were To this Wadham Windham answered that the Declatation was good notwithstanding and cited a Case adjudged where an Action was brought for taking away of two Trunks with Cloaths and it was not said what Cloaths and yet held good And a Case in 43 Ed. 3. 24. Another Exception was taken That the Plaintif declared for the taking away of a great Beam Scales and weights generally and shews not what weights To this Windham answered that was well enough because the Beam and the Scales and Weights do all go to the making up of one and the same thing and have all a relation one to the other as an Action of Trespass brought for the taking away de Caruca cum apparatu is well brought as appears in the old Book of Entries Latch on the other side said that the Declaration is uncertain and that it is not like the case of the Trespass de Caruca cum apparatu for the Weights are nothing tending to make the Beam perfect and it is as incertain as to bring an Action for the taking away of five locks and keys which hath been held to be naught Hales on the other side said that there is certainty enough because it is all one to say a Beam with Scales and Weights which makes all but one thing as to say a Beam Scales and Weights or as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid Incertainty and if the Declaration had not been with the word and it would not have helped it for it may be there were a hundred weights or a thousand weights And therefore let the Iudgement be arrested nâ—si Another Action of Trespass was brought by the same party Declaration wherein he declared for the taking away of two great Trunks locked full of Linnen Woollen Pewter amongst other things for 4 pair of hangings against which also exception was taken in Arrest of Iudgement for the incertainty Roll chief Iustice I conceive that four pair of hangings is certain enough but here is no vi et armis mentioned in the Declaration which ought to be in an Action of Trespass for entring into his house and taking his goods as the case here is and therefore for this cause let the Plaintif shew cause why a nil capiat per billam shall not be entred against him Postea It was said by Roll chief Iustice That if one
fining the party after a Certiorari was delivered unto him to remove the Endictment into this Court and thereupon it was prayed that it might be granted and Sir Tho. Styles and Sir Iohn Sidleys case 8 Caroli was urged where an Attachment was granted in the like case Wild on the other side prayed it might not be granted because the parties endicted did not tender sureties to proceed to a Tryal upon the Endictment as the Statute directs and because the fine was set upon the parties before the Certiorari was delivered and it is in the election of the Iustice to set a fine upon the party Fine Traverse Plea and refuse to admit the party to his traverse as some do hold Roll chief Iustice Vpon view of the force the Iustice may set a fine upon the party and refuse to admit the party to his traverse or plea at his pleasure but the case is not so here and in 15 Car it was resolved that if a Certiorari be brought to the Sessions to remove an Endictment of forcible Entry preferred against divers persons if some of them come in and find sureties for the damages it is good for them all to remove the Endictment for the rest else it would be mischievous for them that find the sureties And he said that if any thing be done at a private Sessions of Peace it ought to be returned to a Quarter Sessions or into this Court Vpon view of the force the Iustices of Peace are Iudges Error and may set a fine and if there be Error a writ of Error may be brought The rule was that Staples be examined upon interrogatories and make a return of the Certiorari Monday next and that he restore the fine to the party Wood and Mountney Mich. 1652. Banc. sup IN the Case of VVood and Mountney Bail not discharged by the death of the Principal Bail Roll chief Iustice said That if the Plaintif in a writ of Error die before the matter be determined yet his Bail are not thereby discharged Webb and Washborn Hill 1652. Banc. sup THe Action was an Action of Trover and Conversion for divers goods Arrest of judgement in a Trover and Conversion The Defendant pleaded not guilty and upon issue joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement that the Plaintif amongst other things had declared for a Trunk with writings which is uncertain Wadham Windham for the Defendant said the Declaration is certain enough and cited a Case where an Action was brought for two Trunks of Cloathes and doth not say what Cloaths and yet adjudged good Another Exception was taken That the Plaintif declares for a great Beam Scales and Weights which is also incertain To this Windham answered It was certain enough because they all make but one thing by reason of the relation they have one to the other And in the old Book of Entries we find that an Action of Trespass was brought pro Caruca cum apparatu and adjudged good Latch on the other side as to the last Exception said It is not answered for the words are very incertain and it is not like the case of the Trespass cited de Caruca cum apparatu for the Weights go not to the perfecting of the Beam as the apparatus doth of the Plow and it is as uncertain as to bring an Action for five Locks and Keys which is not good Hales answered it is certain enough for it is all one as if he had said A Beam Scales and Weights which is as certain as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid and if the word and had been added it would not have helped for they may be a hundred Weights or a thousand Another Exception was taken that the Plaintiff in another Action had declared for four pair of Hangings which is uncertain But Roll chief Iustice said That that might be well enough understood Green at another day insisted that four pair of hangings is very uncertain but if it had been said four sutes it had been well Besides the very word hangings is a doubtfull word for it shews not whether the hangings were Silk or Stuff or what else they were made of as it ought to be He also took an Exception that the Plaintiff had only shewed that here was a denyal and refusal to restore the goods but no conversion of them is shewed To this Hales answered That the Action being an Action upon the Case It is not necessary to shew the Conversion and for the four pair of hangings it is well enough for a pair is a couple when the word is used of dead things and not like a pair of tongues which make but one thing nor is it material to expresse of what the hangings are made as it is not in an Action brought for divers pair of stockings material to say whether they were of thread silk wosted or wollen as hath been adjudged and the word hangings is certain for any one will conceive them to be meant of hangings of a room Roll chief Iustice The Action is an Action upon the case and it is not necessary to shew a conversion for the Action is not brought for the conversion and if it were so if a demand and a denyal be proved doth not this prove a conversion Case Trover and Conveision As an Action of the case lyes for keeping one out of possession although the party doth enter afterwards and the four pair of hangings is certain enough and it is not like as where Latin words are mingled with English in a Declaration and the words being taken in the English construction shall be understood to be eight hangings Nor is it material to expresse of what the hangings are made But the great doubt is whether the words be meant of hangings for a room or not and I suppose they cannot be meant of other hangings the words being in English and not in Latin with an Anglice and I believe you cannot shew me any thing else that the words can by common intendment signifie Iudicium nisi The case was again moved at another day by Latch who urged that four pair of hangings are words incertain but if it had been four suits it had béen well so that here is a misaplication of words to expresse the thing meant and he might as properly have said a suit of Shoes or a suit of Conies If one say he hath lost a hanging this is incertain of it self for it is the predicament of situs and not of substance for a hanging is a posture and the word pair makes it more incertain than it was without it Hales answered that it is certain enough for the word hanging is used here substantively and not as a participle and the common use of the word is only applicable to the hangings of a room and the four pair shall
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his professision and cited one Hinkes case where
Statute of 13 R. 2. C. 9. which is a generall Law and ought to be taken notice of but if not yet the Action is well brought for it is brought for the vexation the Plaintiff was put unto by reason of the presentment and the other matter alleged is but by way of inducement to the Action 2. Car. in Deâ—t and Oâ—ifes case in this court so held and though the conservators had no authority yet the Action lies for the malitious prosecution and for unjustly vexing him and so adjudged Trin. 16 Car. in this Court in Damon and Sheremans case Hales on the other side said that this Court is not bound to take notice that the Lord Maior of London hath this jurisdiction of conservatorship for the Statute which gave it him is a particular Law touching him only and so not to be taken notice of without it be shewn and then if he have no such authority all the proceedings against the Plaintiff are void Roll chief Iustice An Action upon the case lies for bringing an appeal against one in the Common Pleas though it be coram non judice Case by reason of the vexation of the party and so it is all one whether here were any jurisdiction or no for the Plaintiff is prejudiced by the vexation and the conservators took upon them to have authority to take the presentment And I hold that an Action upon the case will lye for maliciously bringing an Action against one where he had no probable cause and if such Actions were used to be brought it would deter men from such malitious courses as are to often put in practice Sherecroft and Weekes Trin. 1953. Banc. sup SHerecrost brought an Action upon the case against Weeks Arrest of Iudgement in an Action for words for speaking these words of him He meaning the Plaintiff got Mary Nab with Child and the Child is his and I have tryed it with a sieve and a pair of sheeres It was moved in arrest of Iudgement that the latter words are insensible and so the Action not maintainable to which it was answered that the first words are Actionable it matters not though the latter words be nonsence because they have no reference to the former words and therefore shall be rejected as sencelesse But Serjeant Barnard on the other side said the latter words do take off the force of the former words as the case is 4. rep f. 19. 2ly It is not said here when he got her with Child Nor 3ly Doth he aver that there was any such person as Mary Nab. Roll chief Iustice Case The Action doth well lye for the former words are positive scandalous words and the subsequent words are not material and if they be then they are in confirmation of the former for it seems he put confidence in the sieve and the sheeres and that made him speak the words and it matters not whether his confidence be true or false Therefore Iudicium nisi pro Querente VVeldon and Strudder Trin. 1653. Banc. sup IT was moved to the Court that the Plaintiff after he had obteyned a verdict and before Iudgement entred dyed Motion to enter the death of the Plaintiff on the Roll. and prayed that this might be entred upon the Roll but the Court denyed it and said it could not be VVhitehead and Buckland Trin. 1653. Banc. sup THe case of Whitehead and Buckland was again spoken unto Demurrer to a replication in Trespass by Original which was this Whitehead brought an Action of Trespasse by original writ for taking his Cattel the Defendant pleaded the Statute of limitations of Actions in Bar the Plaintiff replies that he took forth an original writ against the Defendant for this Trespass within the time limited by the Statute and upon this replication the Defendant demurred and for cause shews that he doth not shew what writ he sued forth as he ought to do otherwise it cannot be known whether he be rightly thereby intituled to his Action or no. 2ly He hath not shewed the continuances upon his proceedings and so it cannot be known whether his Action be discontinued or no that if it be we may take advantage thereof 3ly He doth not say that he hath taken out an Original prout apparet per Recordum as he ought to do for we do not agree the writ that he pleads he hath taken out 4ly He hath concluded his plea so that it amounts to a new assignment and hinders us from objecting against it by way of rejoynder and he joyns an issue of his own head of a matter not alleged before and 5ly The Action is for a Trespass done in 1645. and yet he concludes it to be contra pacem publicam which being in the late Kings time could not be but ought to have been contra coronam et dignitatem nostram Latch on the other side said that both parties agree to the Original and the disagreement is only in the time of the execution thereof and it is not necessary to say prout patet per recordum nor is it necessary to shew the continuances of the process for this would make the Record too long and here is no hinderance but they may rejoyn if they have cause Pâ—â—a Error Roll chief Iustice As to the first Exception it is not necessary to set forth the particulars of the writ and if the writ be not good you may have a writ of Error and for the second exception the plea is good without shewing the continuances and there is no inconvenience by not setting them forth and we will intend that all is rightly done because you have appeared and you are not hindred from replying but may do it if you will and have cause and the Record here shews that you have appeared to this writ but it is not good to conclude the plea super totam materiam as you have done for by this he is hindred from replying and then he hath good cause to demur because you have concluded him and what say you to that Latch The party may strike out the words Et querens similiter Roll chief Iustice He cannot strike out that which belongs not to him Replication Demurrer and you cannot go back and the other is compelled to demur Therefore Nil capiat per Billam nisi c. or waive the Demurrer Postea Trin. 1652. Banc. sup IT was said in the case of Homes and Bingley Who may make a lease to try a title that Tenant at will may make a lease for years to try a title of land and so may a Copy-holder Q. Trin. 1652. Banc. sup BY Roll chief Iustice What plea an Attorney may plead without a special warrant An Attorney who hath warrant to appear for his Clyent may plead for him without warrant But the Clarks in Court said he may plead no other plea without a special warrant but a non sum informatus ideo Q. Peck and Ewre Trin. 1653.
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
will remand him to be tryed where he is Trin. 1654. Banc. sup THe Court was moved for one brought out of Wales by a Habeas Corpus That one might be bayled Quo warranteâ— that he may be bayled because they have no Gaol-delivery there Roll chief Iustice It were good a Quo warranto were brought against them for not using their privileges duly Let the Prisoner be bound to answer his offence at the next Assises The Protector and Baxter Trin. 1654. Banc. sup ONe Baxter endicted upon suspition of Robbery was out lawed upon the Endictment Error to reverse an Outlawry in felony and prayed to be allowed and taken upon the Outlawry and committed to Finsbury Gaol afterwards he brings a Writ of Error to reverse the Outlawry and obtains a Habeas Corpus to be brought hither to prosecute his Writ of Error and upon the retorn thereof was brought to the Bar and prayes to have his Writ of Error allowed and to have Counsel assigned him and that he may have a Copy of the Record and that he may be bayled and he took two exceptions to the Outlawry 1. That he was in Prison at the time he was out-lawed and knew nothing of the Outlawry 2ly That the charge against him is too general and there is no body prosecutes against him and prayed he may go with his Keeper to his Counsell Roll chief Iustice You cannot be bailed nor have a Copy of the Record Bail Copy but you shall have Counsell assigned you but you must be remanded Iles and VVindsor Trin. 1654. Banc. sup Trin. 1653. rot 360. A Writ of Error was brought to reverse a Iudgement given by default in the Common-Pleas in an Action of Trover and Conversion Error to reverse a judgement in Trover given by default and the error assigned was that the Plaintiff had declared for two pieces of Cloath and did not express whether they were linnen or wollen cloath But the exception was over-ruled and the judgement affirmed nisi Bunniworth and Gibbs Trin. 1654. Banc. sup Mich. 1653. rot 50. A Writ of Error was brought to reverse a Iudgement given in the Court at Peterborough in an Action upon the Case upon a promise Error to reverse a judgement in an action upon an Assumpsit wherein the Plaintiff declared that in consideration that the Defendant had received 5 l. which was due by the Plaintiff unto the Defendant upon an accompt made up betwixt them at such a time the Defendant did assume and promise to the Plaintiff to pay unto him a certain sum of mony when the Defendant shall set up an Apothecaries shop in Peterborough if the Plaintiff be then living there The error assigned was that here is no consideration laid in the Declaration to ground the promise upon for the consideration is the receipt of five pounds which was his own mony for it was due to him upon the accompt and this can be no good consideration But Roll chief Iustice answered to this that a little consideration will serve to ground a promise upon Consideration and it may be the Plaintiff would not have acknowledged so much as 5 l. to have been due upon the Accompt if the Defendant would not have made this promise A second exception was taken that the Plaintiff doth not aver Averment that when the Defendant set up the Apothecaries shop in Peterborough that he was living there Roll chief Iustice This is a good exception for the intent of the Plaintiff appears to be that he would not have another of his own Trade in the Town to lessen his trading Therefore let the Iudgement be reversed nisi Lord and Michell Trin. 1654. Banc. sup Trin. 1653. rot 358. A Writ of Error was brought to reverse a judgement given upon a Nihil dicit in the Common-pleas in an Action upon the Case upon an Assumpsit Error to reverse a judgement by a Nihil dicit in an action upon an Assumpsit the consideration was laid that if the Plaintiff would forbear to sue the Defendant that then the Defendant would pay such a sum of mony Two errors were assigned to reverse the judgement 1. That whereas the consideration is laid generally that if the Plaintiff should forbear to sue the Defendant he would pay the mony the Plaintiff hath not averred this consideration but saith in facto that he did forbear to sue till Iune which cannot be the same consideration 2ly The Writ of Enquiry is said to be enquired of by twelve lawfull men in the County whereas it should be of the County for the Iurors for ought appears may be of another County and then it cannot be well Averment Roll chief Iustice This is but an inquest of Office but you have not averred the consideration as you ought to have done and this is error Therefore let the Indgement be reversed nisi c. Phillips and Phillips Trin. 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Court at Newport in an Action upon the Case for these words Error to reverse a judgement in an action for words Thou art a whoreson Bankrupt-Rogue and they were laid to be spoken of a Farmer The errors assigned were 1. That it doth not appear by the Declaration that the Plaintiff gets his living by buying and selling And 2ly It appears not that the words were spoken of him in relation to his profession And upon these Exceptions the judgement was reversed Bancks and Prat. Trin. 1654 Banc. sup Hill 1653. rot 603. A Writ of Error was brought to reverse a judgement given in the Common-pleas for an Attorny in an Action upon the Case Error to reverse a judgement in an action upon Promise grounded upon a promise that the Defendant would pay him such fees as should grow due to him as an Attorny in prosecuting such a Sute for him in the Common pleas and for prosecuting another sute for him in Chancery as his Sollicitor The Errors assigned were 1. That he doth not shew particularly how he hath laid out the mony but only expresseth it generallly that he had expended and there was due unto him such a sum of mony 2ly The Promise is that the Defendant would pay him the fees so long as he should continue to be his Attorny and to prosecute for him and it doth not appear that he continued to be his Attorny and to prosecute for him during the sute and to make the first exception good Took and Sir Tho. Walsinghams Case lately adjudged was urged But as to that exception Roll chief Iustice answered it is not necessary to shew particularly how the mony became due and was expended for this would make the Declaration too long and though the Plaintiff as hath been objected should bring another Action for the same thing yet you may plead this recovery in bar generally against him Plea in bat Intendment And as to the second exception
the rule and he was ordered to pay the Iury. Nota. VValkenden and Haycock Mich. 1654. Banc. sup VPon a Verdict given for the Plaintif in an Action upon the case for these words spoken of a Millener in London Action upon the case for words viz. Thou art in a breaking and decayed condition and I will prove it and if you question me I will prove it to your disgrace Twisden moved for judgement for the Plaintif because he held the words are actionable for by the speaking of them the Plaintif is disgraced in his profession for in common understanding the words amount to as much as if he had said that the party is a Bankrupt and it is so averred in the Record and found by the Iury and he cited Mich. 1651 Tayler and Keisers case and Smith and Rookes case 24 Car. Wild on the other side said that the words are not actionable Adjective words for they are adjective words and of an incertain signification for the words may as well mean that he is broke or burst in his body as that he is a Bankrupt or broken in his estate and there is no averment that the words were spoken in the hearing of tradesmen and though they were yet they may not tend to his disgrace for a Tradesman may be in a decaying condition in respect of what he hath formerly been and yet have stock enough left to trade withall The Court then enclined that the words were actionable but for that time gave no judgement Iudgement but the case being moved again the same Term judgement was given for the Plaintif Lawrence and Harrison Mich. 1654. Banc. sup AN Action upon the Case was brought by Lawrence against Harison his Attorny for delivering a Fieri facias against him Action upon the Case for breach of trust in the sute wherein he was Attorney for him to the Vnder-Sheriff and procuring it to be executed against him contrary to the trust reposed in him Vpon not-guilty pleaded and a verdict sound for the Plaintiff It was moved in arrest of judgement for the Defendant by Windham That there appears not in the Record to be any combination between the Defendant and the Plaintiffs adversary against his Clyent and so no breach of trust appears to ground the Action upon 2ly Here being a judgement in the Case the sute in which he was entertained to be Attorny is ended and consequently the trust reposed in him is determined and so no breach of it for he is now discharged from being Attorney and the Plaintiffs averring the contrary doth not alter the Law and besides this delivery of the Fieri facias is in pursuance of Iustice which since that the sute is ended cannot be called a breach of trust Roll chief Iustice But you did not only deliver the Writ against your Clyent to the Vnder-Sheriff but did also procure it to be executed against him which shews there was a combination against him The only question is Whether a Warrant of Attorney determined whether the Warrant of Attorney be determined by the judgement given in the sute wherein he was retained and I conceive it is not for the sute is not determined for the Attorney after the judgement is to be called to say why there should not execution be made out against his Clyent and he is trusted to defend his Clyent as far as he can from the execution Therefore let the Plaintiff have his judgement Judgement nisi c. Roungs and Woodyard Mich. 1654. Banc. sup ROungs a Farmer in the Country brought an Action upon the Case against Woodyard for speaking these words of him Action of the Case for words against a Farmer You are a Beggar and a Banckruptly Fellow and if every one had his own you are not worth a Groat Sergeant Fletcher moved in arrest of judgement that the words are not absolute and positive words but are spoken adjectively and also they are not spoken of a Merchant or of one that gets his living by buying and selling and so are not scandalous for a Farmer cannot be a Bankrupt and here is no dammage to the party by the speaking of them Roll chief Iustice Particular dammage Though it appear not that the Plaintiff is a Tradesman yet here appears to be a particular dammage to him by the speaking of the words viz. that by reason of the speaking of them he was discredited with his Landlord and his Landlord had given him warning to be gone out of his Farm and it matters not though the words generally considered are not actionable Therefore shew cause Saturday next why the Plaintiff shall not have his judgement Iones and Graves Mich. 1654. Barc sup AN Action upon the Case was brought by Iones against Graves for entring upon the possession of a Term Action upon the Case for entring upon the possession of a Term. after he had recovered it by a verdict given for him Vpon not-guilty pleaded and a verdict for the Plaintiff it was moved in arrest of judgement that the Plaintiff hath not shewed that there was any Term continuing in him at the time of the Defendants entry into the Land for though the Term might have a continuance at the time of the recovery yet it may be ended at the time of the Plaintiffs entry into the Land 2ly It is not expressed when the entry was and so it appears not whether it was before or after the recovery so that it cannot be known whether the Plaintiff hath cause of Action or not Latch also doubted whether this kind of Action ought to be in this Case or not and whether he ought not to have brought an Action of Trespasse and not an Action upon the Case Roll chief Iustice Election of Action He may bring an Action upon the Case or an Action of Trespasse at his own election Wild on the other side held that the Declaration was good enough for by it there appears to be good cause of Action for the time of the entry is expressed viz. that it was after the recovery 2ly The entry is found to be vi armis which implies an unlawfull entry and so the Iury have found it to be Implication The disturbing a possession actionable viz. that he is put out of his possession recovered Roll chief Iustice Though the Plaintiff had no title yet he had a possession and it is actionable for the Defendant to disturb him Therefore let the Plaintiff have his Iudgement nisi c. Mathew and the Hundred of Godalming in Surrey Mich. 1654. Banc. sup IF a Carriers man or Son conspire to rob him and accordingly do it Action upon the Statute of Winchester against a Hundred Mitigation of dammages the Carrier not being privy to it The Carrier may bring an Action against the Hundred upon the Statute of Winchester for this robbery but this conspiracy may be urged in mittigation of dammages Per Roll chief Iustice In a
the Case against Mackallye Arrest of judgement in an Action upon the case upon a promise and declared That whereas he had an intent to enter an Action against the Defendant and to arrest him at such a time the Defendant in consideration that the Plaintif would forbear to arrest him at that time did promise that he would put in bail to him at any time after when he shall enter his action against him and for breach of this promise he brings his Action Vpon non assumpsit pleaded and a verdict for the Plaintif it was moved in Artest rest of judgement That it is not said how long the Plaintif should forbear to arrest the Defendant Consideration Declaration Reasonable construction Judgement and it may be for so little time that it will not be a good consideration to ground the promise But it was answered that it is well enough for the declaration pursues the words of the agreement between the parties and cannot be better expressed Glyn chief Iustice It is a good consideration and we must make reasonable construction of words Therefore let the Plaintif have his judgement Abbott and Vaughan Trin. 1655. Banc. sup Pasch 1655. rot 557. ABbott brought an Action upon the case against Vaughan and his wife for words spoken of the Plaintif by the Defendants wife Error upon a Judgement in an Action upon the case for words and upon not guilty pleaded and a verdict found for the Plaintif and a judgement thereupon given upon a writ of Error brought this Exception was taken that the verdict found the wife only guilty and yet the judgement was given against Baron and Feme which was urged to be Error but 9 E. 4. was cited on the other side that the judgement is well given Glyn chief Iustice The Iury have found the wife guilty and so the Declaration is true and therefore just cause of Action and the judgement well given Williams and Probe Trin. 1655. Banc. sup VVilliams brought an Action upon the case for speaking these words of her Arrest of judgement in an Action for words viz. Thou art a Whore and I will prove thee a Whore and thou hast made my house a Bawdy house After a verdict it was moved in Arrest of judgement that the words are not actionable because they do not imply that she had played the whore her self though she had made the Plaintifs house a Bawdy house But Glyn chief Iustice answered If we take all the words together as they are laid they are actionable for they are particular applicable words Particular applicable words Iudgement relating to the parties playing the whore Therefore let her have her judgement Bacon and Ramsey Trin. 1655. Banc. sup THe Court was moved for Bacon a Barrester of Grays Inne that he might have his privilege to lay an Action transitory in Middlesex For a Barrester for his privilege to lay his Action in Middlesex whereas it was laid in Northumberland and Franklin and Sir William Butlers case and Bere and Iones his case of the Middle Temple were cited to prove that a Barrester ought to have this privilege that where any transitory Action is brought against him he may have it laid in Middlesex wheresoever the cause of Action was The Court advised and desired to sée the presidents cited At another day it was moved again and upon the presidents produced Granted It was ordered to lay the venue in Middlesex accordingly The Protector and Blackwell Trin. 1655. Banc. sup THe Court was moved for a melius inquirendum to be directed to the Coroner of Middlesex to enquire of what goods one Tooms that hanged himself did die possessed of For a melius inquirendum because the Inquisition returned did only find his goods he was possessed of in London Glyn chief Iustice You may have a melius inquirendum it being for the Protector if the practice of the Court will allow it but it must be directed to the Sherif Sherif Coroner because the Coroner hath done his office already and hath nothing now to do with it Eston and Manley Trin. 1655. Banc. sup IT was moved in Arrest of judgement in an Action of Debt upon an Obligation Arrest of judgement in debt upon an Obligation that the Obligation upon which the Action was brought was for the payment of 100 l. and the Plaintif declares for 80 l and so the Declaration varies from the bond 2ly It is said that the Action was entred in the same Counter whereas there was no mention of any Counter before neither doth it appear that the Counter is a Court. Glyn chief Iustice answered the first exception is to no purpose and for the second it is but an exception to a surplusage which might have been left out of the Declaration and it is also after a verdict Surplusage Iudgement Therefore let the Plaintif have his judgement Thomas and Mich. 1655. Banc. sup THe case was this one promised to the Father Arrest of judgement in an Action upon a promise that in consideration that he would surrender a Copyhold to the Defendant that the Defendant would give unto his two daughters 20 l. a piece and after a Verdict in an Action upon the case brought by one of his daughters for breach of this promise It was moved in Arrest of judgement that the Plaintif had declared upon a joynt promise made which concerned another with the Plaintif and yet the Action is brought but by one of them Joynt promise whereas they ought to have joyned in the Action But Glyn chief Iustice answered that the parties have distinct interests and so any one of them may bring an Action Turner replyed The Declaration mentions the promise to be a joynt promise Distinct interests Glyn chief Iustice But the Law doth distinguish the interest though the Declaration be general Serjeant Bernard Here ought to be a several Action Distinction of Law Iudgement and so hath it been lately adjudged in the Common pleas But it was answered that the Action is brought but for one twenty pound due to one of the Daughters and so judgement for the Plaintif nisi c. VVood and Gunston Mich. 1655. Banc. sup IN a Tryal at Bar in an Action upon the case for words between Wood Plaintif No Action for scandalous words and Gunston Defendant It was said by Glyn chief Iustice That if a Counceller speak scandalous words against one in defending his Clyents cause an Action doth not lie against him for so doing for it is his duty to speak for his Clyent and it shall be intended to be spoken according to his Clyents instructions Hether and Bowman Mich. 1655. Banc. sup IN a tryal at Bar between Hether and Bowman in Trespass and Ejectment it was said by the Court Instrument in Law Copyholder Admission That the Lord of a Copyhoyld is but an Instrument to admit the Copyholder and ought to admit him according
the Record It was said that a challenge to the array is no part of the Record but ought to be determined whether it be good or not by the Iudge before whom the tryal of the Cause should have been By whom to be determined Demurrer to a challenge if the challenge had not been taken and so hath it been ruled upon serious advise in the Common-pleas and it was then likewise said if there be a demurrer to a challenge at the Assises the Iudge of Assise may determine it there or over-rule it or adjourn it to be heard at another time Somes and Sir John Lenthall Mich. 1655. Banc. sup THe Court was enformed that an Action of Debt was formerly brought against Sir Iohn Lenthall and that there was Iudgement For Sir Iohn Lenthall the Mareschall to appear that he might be in execution and an execution thereupon taken out against him but that he abâ—conded himself that be could not be taken and therefore it was prayed in regard he was an Officer of this Court that the Court would order him to appear here that he may be committed in execution to the Sherif of Middlesex But Glyn chief Iustice answered if Sir Iohn Lenthall do appear here and you pray him in execution we can commit him to no other prison but the Marshalsea for that is the prison of this Court and to commit him to that prison of which he is the Kéeper without securing the Prisoners there before we do it will be an escape in Law of all the Prisoners Therefore let Sir Iohn shew cause why he should not pay the Debt for it is neither for his own credit nor the honor of this Court that he should not satisfie his Debts Fardres and Prowd Mich. 1655. Banc. sup HArdres brought an Action upon the Case against Prowd Arrest of judgement in an action upon the Case upon a promise and declared that whereas he at the instance and request of the Defendant had taken pains to reconcile differences betwixt the Defendant and I. S. and others the Defendant did assume and promise unto the Plaintif to pay unto him 100 l. at a certain day and for not paying the mony accordingly he brings his Action And upon non-assumpsit pleaded and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement 1. That here is no consideration set forth in the Declaration to ground the promise upon for it is only said that in consideration that the Plaintif had taken pains c. Consideration executed he did promise c. and this is a consideration executed and not sufficient to ground a promise upon and one Hunt and Dier case was cited for proof 2ly He doth not shew what pains he hath taken and so it cannot be known whether his pains were sufficient to ground the promise upon 3ly He sayes that he took pains to reconcile differences betwixt the Defendant and I. S. and others and doth not shew who these others were The two last exceptions were over-ruled without speaking to and to the first VVild answered that here was a continuing consideration Continuing consideration though the pains taken were past for it is said he took the pains at the instance and request of the Plaintif Glyn chief Iustice It is as you say Voluntary curtesie for here is more than a voluntary Curtesie upon which no consideration for a promise can be grounded for the pains here were undertaken at the instance of the Plaintif Iudicium nisi c. Mich. 1655. Banc. sup BY Glyn chief Iustice Where one may appear by Attorney where not If one come in upon the Eâ—igent he may appear by his Attorny but if he come in upon the Outlawry he must appear in his proper person and not by his Attorny and so is the constant practice of the Common-pleas and of this Court also Nota. London and VVilcocks Mich. 1655. Banc sup LOndon brought an Action of Trespass against VVilcocks inter alia Arrest of judgement in Trespass for taking and carrying away 40 loads of Corn in the Straw Vpon a verdict found for the Plaintif it was moved in arrest of Iudgement that the Declaration was uncertain for the Plaintif had declared for 40 loads of Corn in the Straw and it doth not appear whether they be Horse-loads or Cart-loads or what other loads of Corn they are But Glyn chief Iustice answered that it is well enough expressed for it being of Corn in the Straw it shall be intended Cart-loads and therefore let the Plaintif have his Iudgement Judgement Q. If the Action had been laid in the County of Cornwell where it is usual to carry Corn in the Straw upon Horses whether the Declaration would have been good VVood and Gunston Mich. 1655. Banc. sup WOod brought an Action upon the Case against Gunston for speaking of scandalous words against For a new tryal in an action of Trespass for 〈◊〉 words and amongst other words for calling him Traytor and obteyns a verdict against him at the Bar wherein the Iury gave 1500 l. dammages Vpon the supposition that the dammages were excessive and that the Iury did favour the Plaintif the Defendant moved for a new tryal But Sergeant Maynard opposed it and said that after a verdict the partiality of the Iury ought not to be questioned nor is there any Presidents for it in our Books of the Law and it would be of dangerous consequence if it should be suffered and the greatness of the dammages given can be no cause for a new tryal but if it were the dammages are not here excessive if the words spoken be well considered for they tend to take away the Plaintifs estate and his life VVindham on the other side pressed for a new tryal and said it was a packed business else there could not have been so great dammages and the Court hath power in extraordinary cases such as this is to grant a new tryal Glyn chief Justice Discretion of the Court. Discretion Judicial Arbitrary The Court not to be intended partial It is in the discretion of the Court in some cases to grant a new tryal but this must be a judicial and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscariages of Iuries and to grant new tryals upon them and it is for the peoples benefit that it should be so for a Iury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them but it cannot be so intended of the Court wherefore let there be a new tryal the next Term and the Defendant shall pay full Costs and judgement to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict Granted The Protector and Buckner Mich. 1655. Banc. sup BUckner was endicted upon the Statute of 1. Iac. Special verdict upon an endictment upon the
of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
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
of Infamy and disgrace and not of dammage to the Plaintiff But it was said that it had been adjudged that an Action did lye for saying one had been endicted of Barratry where the party that was endicted was acquitted and for saying one was a Banckrupt Rogue But because Panel of Councel with the Defendant said Presidents he could shew Presidents that the words are not actionable the Court forbore to give Iudgement but desired to see them and gave him time to bring them in another day Panel cited two Presidents but no Iudgement in either Whereupon Iudgement was given for the Plaintiff Blackwell and Ashton Trin. 23 Car. Banc. Reg. FOwer several persons were bound conjuctim and divisim in an Obligation to Blackwell Demurrer to a Scire facias upon a Judgement Demurrer Abatement Blackwell hath a Iudgment against them one of the Defendants dies Blackwell sues out a Scire facias against the 4. and it was demurred to the Scire facias because one of the Defendants against whom the Iudgement upon which the Scire facias was granted was dead when the Scire facias issued forth In this case it was said if two be bound joyntly in an Obligation and an Action be brought against one of them only upon this Obligation the Defendant cannot demur but may plead in Abatement of the Writ And if two be bound joyntly in an Obligation and one of them dye and the Obligee brings an Action of Debt against the other that survives he must in his Declaration set forth that the other is dead The Plaintiff in the case at the Bar perceiving the inclination of the Court to be that the Scire facias was not good Scire facias moved for his own expedition to have it quashed which was granted Lodg and Weeden Mich. 23 Car. Banc. Reg. THe Plaintiff brings his Action upon the Case against the Defendant Arest of Judgment in an action upon the Case and declares that the Defendant had killed divers infected Cattel and had thrown out the inwards or offall of those Cattel upon the Close of the Plaintiff whereby divers of the Plaintiffs Cattel were infected with the murrain and did dye thereof and shews how many and declares to his dammage so much and hath a verdict against the Defendant The Defendant moved in arrest of Iudgement and offers these exceptions 1. The Declaration is that the Plaintiffs Cattel were infected morbo mortali Anglice with the murrain whereas there is a proper Latin word to express the Murrain VVords namely Lues which ought to have been used and not to be expressed by such uncertain words as morbus mortalis is which signifies only a mortal disease and so might be any other Disease as well as that 2ly The Declaration says that the Defendant did cast interioria Anglice the inwards or off all of the Cattel whereas that is not the proper Latin word for them but Intestinâ— 3ly The Declaration doth not set forth what Cattel they were nor how many they were that the Defendant had killed and thrown their inwards or offall on the Plaintiffs Close But the Court over-ruled all the exceptions and ordered the Defendant to shew better cause why the Plaintiff should not have judgement Rawson and Bargue Trin. 23 Car. Banc. Reg. Vid. antea THe case between Rawson and Bargue upon the special Verdict found in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arguments whether a Free Chapel or not within the Statute of 2 Ed. 6. Statute Free Chapel wherein the Question was whether the Chapel was a free Chapel and given by the Statute of â— Ed. 6. to the King or no was moved again and argued by Maynard that it was a free Chapel given to Edward the 6th by the Statute and said the first reason was taken from the words of the Statute A second reason from the preamble of the Statute A third from the reason of the Statute And a fourth from the meaning of the Statute First the intent of the Statute was to change Chapels of superstition to pious uses and doth intend reformation and not to take away the Chapels themselves and for this cause it being for so great a good the Statute shall be generally interpreted 11 Rep. f. 17. and the words All mannour in the Statute c. do more oppose a distinction than the word all can do for they are more emphatically used 2ly Though it be parochial and with cure of Souls yet it is not exempted out of the Statute and this Statute differs from the Statute of 37 H. 8. And in case of free Chapels all are vested in the King be they superstitious or not by the Statute 3ly Vesting It is not within the exceptions in the Statute and therefore is within the Statute and he took this difference Difference that Donors of Churches are where Churches are donative and Patrons of Churches are where they are presentative 2ly The proof of the contemporary exposition of the Statute is here to be considered 6 H. 7.14 Frée Chapels are of two forts 7 Ed. 3.18.17 Ed. 3.12 Cooks Lit. 44. Division Donative A Frée Chapel may be presentative and a Parish-Chucrh donative and they are so according to the foundation of them at the first A Parish-Church cannot be a Frée-Chapel Parish-Church but a Free-Chapel may be a Parish-Church 47 E. 3.5.9 E. 3. f. 10. â—0 Ed. 3. and a Church is not a Church if it have not Baptism and Burial belonging unto it Derivation Bract. lib. â— C. â— 17 E. 3.5 E. 3. A Chapel may be within a Church and a Church within a Chapel and Capella is derived by Rhenanus the Civilian from a Cap or Covering and so is to be accompted more superstitious than Churches are because their very name shews their derivation to be superstitious Twisden argued on the contrary that it was not within the Statute of â— Ed. 6. nor given thereby to the King and that it is not a Free-Chapel neither by the words nor within the intent of the Statute 2ly If it be a Frée-Chapel yet it is presentative and within the jurisdiction of the Ordinary and so not a Free-Chapel for it hath no immunity either in regard of Iurisdiction or otherwise and cited Cooks Littleton f. 94. The Chapels of the King are all Free-Chapels because they they are exempt from all Iurisdiction of the Ordinary Register 40 41. Thre are two sorts of Chapels to wit Frée-donatives 6 H. 7. f. 1â— 2ly Presentatives Nat. Br. 35. A Chapel may be presentative by the foundation of it or by matter ex post facto 22 H. 6. f. 26. Matter ex post facto Presentation A second reason to prove it to be presentative may be from the finding of the Iury who have found it so and the calling of it otherwayes is to no purpose to alter it Institution Cure of souls Dyer 81 Next
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
part of the Defendant To be discharged upon Common Bail that the Plaintif had declared upon an obligation with a condition but had not set it forth in the Declaration and therefore desired that he may either have Oyer of it or else that the Declaration being imperfect so that he cannot plead and he being now in prison may otherwise be set at large Roll Iustice We cannot compell the Plaintiff to set forth the condition of the Obligation but till he doth the Defendant shall not be compelled to plead Plea and let the Plaintiff shew cause upon not ice given to him why the Defendant shall not goe at large upon Common bail It was moved again Common Bail and then Roll Iustice said If you arrest one and doe not proceed in three Terms he ought to goe out upon Common Bail But move it again to morrow Trin. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of 5 Eliz. To quash an endictment of perjury against perjury The exceptions taken against it were 1. The Endictment saith the Oath was taken before Baron Atkins and Serjeant Turner but it doth not say where viz. whether it were at the Sessions or Assizes 2ly It saith the Oath was taken Coram Iusticiariis Domini Regis but it doth not express what Iustices they were The Endictment was quashed for the first Exception The King against Bellingham Trin 24 Car. Banc. Reg. BEllingham was indicted upon the Statute of 5 Eliz. For moderation of a sine upon conviction for perjury against perjury and pleaded Not Guilty and was found Guilty The Case was this Bellingham had a Process delivered him out of the Court of Wards to serve upon one which he did accordingly and upon the return thereof he made Oath that he served the Process upon the party the 8th day of the Month whereas it was the 9th day but it appeared upon examination of the matter that the Oath was not taken malitiously but only rashly and upon this the Court was moved to set a moderate fine Fine Roll Iustice said because it was so therefore let the fine be but 10 l. Gallop against Chase Trin. 24. Car. Banc. Reg. Pasch 24. Car. rot 250. THe Case of Chase and Gallop was again moved Error to reverse a judgement in Trover and Conversion which was this Chase brought an action of Trover and Conversion in the Common Pleas against Gallop and his wife and a Stranger and declares that the Baron and Feme and the stranger converterunt ad usum suum proprium The Plaintif had a Verdict and Iudgement The Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the Declaration is not good for it declares of a Conversion made by the Feme to her own use which cannot be she being a Feme Covert Roll Iustice said The Declaration doth intend that all the Defendants did convert the goods Declaration Feme Covert Conversion which cannot be for the Feme cannot convert them and cited Crow and Bakers case 1 Caroli 7 H. 7. f. 3. Therefore let the Iudgement be reversed Trin. 24. Car. Banc. reg THe Court was moved for a Certiorari to remove an Order of Sessions made for the electing of one to be a Constable For a Certiorari that the Order may be confirmed here and the Constable compelled to be sworn Roll Iustice answered That by granting it the execution of Iustice by the Iustices in the Country will be hindred therefore appeal to the Iustices of Assize for we will not grant a Certiorari Vpon this a writ was prayed out of this Court to compell the Constable to be sworn which was granted Mandamus Trin. 24 Car. Banc. Reg. A Iudgement was given in the Common Pleas in an ejectione firmae quod recuperet writ of Enquiry taken out Whether a Writ of Error good but before it was executed and retorned the Defendant brought a writ of Error and the question was whether the writ of Error lay or no. Turner of Councel with the Defendant in the writ of Error argued that it did not lie because the Original writ was not determined when the writ of Error was brought and so the Iudgement was not perfect or compleat and consequently a writ of Error could not be brought to reverse it and that the writ is not determined nor the Iudgement prefect is proved because the Action being an ejectione firmae here is no costs and damages found nor is there any habere faciaâ— possessionem retorned which are the fruits of the judgement and and he cited 34 H. 8. f. 18. 39 H. 8. Fitz. Error 40. 36 37 Eliz. in the Common Pleas Year and Peverells Case 6 Car. Banc. Reg. But Roll Iustice said here is ideo consideratum est quod recuperet Judgement which is a perfect Iudgement but it had not been so if the Iudgement had been quod recuperare debeat and it is in your power whether you will have a writ of enquiry or not and if he judgement be affirmed here upon the writ of Error brought you may have a writ of enquiry here in this Court Brev. d'enquiry The Councel thereupon moved for a Certiorari Roll Iustice Take it but it will doe you no good for the judgement is well Stent against Trin. 24 Car. Banc. Reg. STent brought an Action upon the case for speaking these scandalous words of him Arrest of Judgement in an Action for scandalous words Thou art a pick pocket Rogue and hast picked thy masters pocket and his Money-box and I will prove it The Plaintif had a Verdict The Defendant moved in arrest of judgement that the words are not actionable for that they are too general and uncertain The Iudgement was arrested till the Plaintif should move Trin. 24. Car. Banc. Reg. A Certiorari was granted out of this Court to removed certain endictments of forcible entries For a Supersedeâ—s to a Certiorari whereas in truth there were no Endictments of forcible entry found against the party upon this a Supersedeas was prayed to supersede the Certiorari Roll Iustice This Certiorari was gotten by way of pervention for what might be done Procedendo but take a Procedendoto the Justices to proceed notwithstanding the Certiorari Trin. 24. Car. Banc. Reg. A Scire facias was taken out to revive a judgement For the Defendant to plead in chief after imparlance and to have execution The Defendant appears and imparls and after imparlance pleads in abatement of the Scire facias that the Plaintif had taken out a former Scire facias for the same cause which is yet depending It was moved for the Plaintif that the Defendant ought not to plead this plea in abatement after imparlance but that he ought to plead in chief Roll Iustice Let him plead such a plea as he will abide by within a week
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
displacings of estates because it puts an estate in a stranger who ought not to have it as Bredons Case is where one doth acknowledge another to have the inheritance by the fine this is a forfeiture By the fine here the Conusor acknowledges more to the Conusee than he hath and he might have expressed in the fine the estate that he hath in the Land and no more and so there is an estate in possession here Ierman Iustice said the fine shall not be construed to do wrong but the Case is of consequence therefore he would advise Nicholas held it was no forfeiture Ask was of the opinion of the chief justice Roll chief Iustice said estopels will make forfeitures in many Cases Q. what Iudgement was given Meers against French Hil. 1649 Banc. sup Entred Hil. 24 Car. rot 24. AN ejectione firmae was brought for ejecting the Plaintiff out of a rectory Arrest of Iudgement in an Ejectione firmae and declares of a lease thereof made unto him by Indenture The Plaintiff had a verdict the Defendant moved in Arrest of Iudgement that the Plaintiff had declared of a lease per Indenturam Declaration and doth not say in curia prolatam The Court answered if an Indenture be pleaded but by way of inducement it is not necessary to say in cruia prolatam otherwise if it be pleaded to entitle the party by it 2ly He declares that the Defendant did eject him out of such a close and doth not say whether it was pasture or arrable land nor how many Acres it was Roll chief Iustice said it is not good if it be of a close of Land if he do not give it a name nor declare of what nature the land is 3ly He declares that the Defendant ejected him de uno Crofto which is incertain But Roll chief Iustice said That a writ of Dower and an Assise will lie de uno Crofto and so will an Ejectione firmae Dower Assise although a Formedon will not lie de uno Crofto And therefore let the Plaintif take his Iudgement except cause be shewed to the contrary Monday next Postea Hill 1649. Banc. sup Entred Trin. 24 Car. C. B rot 1010. A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of Trover and Conversion of divers goods Error to reverse a Iudgement in Trovers Conversion for many improper words used in the Declaration to express several of them as 1. Argentum servitium is used to express a silver Salt-cellar which is not good for servitium is Latin for service And in Parker and Martyns case in this Court Instrumentum ferreum anglice a Horse-lock was held not good and 3 Iac. Robotums case Hama anglice a Crow of Iron was adjudged naught 2ly He declares de duobus Castoribus anglice two Hats 3ly De duobus Catents pro patinis anglice Dishes 4ly De duodecem Crinalibus et plagulis anglice Coifs and Crosscloaths Ed. Turner prayed for Iudgement notwithstanding these exceptions Because as to the 1. there is no proper word for a silver Salt-cellar and it is here well enough described by divers words 2ly There is no proper Latin word for Hats called Demy-Castors and therefore it is lawfull to frame words so for the rest being new things not known to the Romans there are no Latin words for them so words may be invented well enough to express them and servitium argenteum is here with an anglice and therefore it is a good description of the thing and de instrumento ligneo Composito anglice a skreen hath been adjudged good because there is not a proper word to express it But the Court doubted of the words used for Coâ—fs and Close-clothes because they are divers things Ierman Iustice said argenteum servitium anglice a silver Salt-cellar cannot be good for servitium is Latine for service But Roll chief Iustice said if servicium signifie nothing then the Iury gave no damages for that and then the rest may be good But yet the Iudgement was ordered to be reversed except cause shewed and was then at the prayer of the Councel pronounced which if it be not prayed the Iudge will not doe it Quod nota Peise against Mablye Hill 1649. Banc. sup Pasch 1649. rot 222. A Writ of Error was brought to reverse a judgement given at Launceston in an Action of trespass upon the case Error to reverse a judgement in an action upon the case for words for these words These Town weights in Georges possession meaning the Plaintif who was the Common weigher of the Town are false and cosening weights The 1. exception was that here was no Communication had of the Plaintif but the words are only spoken concerning the weights 2ly The judgement is not well entred Case Judgement for it is said to be given ad eandem Curiam whereas it ought to be per eandem Curiam Upon these exception the Iudgement was reversed Colson against Ree Hill 1649. Banc. sup Hill 24 Car. rot 561. A Writ of Error was brought to reverse a Iudgement given in the Court at Newcastle upon Tyne in an Assise of Novel disseisin Error to reverse a Judgement given in an Assise Assise of Nusance The Error assigned was that the Plaintif doth declare that the Defendant did disseise him de uno muro lapideo and that the Defendant had erected a house in the place to his nusance The Court answered The Plaintif ought to have brought an Assise of Nusance for this wrong which because he hath not done let the judgement be reversed Batisford against Yate Hill 1649. Banc. sup Pasc 1649 rot 289. A Writ of Error was brought to reverse a judgement given in an Action of Trover and Conversion for these errors Error to reverse a judgement given in a Trover and Conversion Venire 1. It is said of the Iurors in entring of their verdict Dixerunt pro querente and aly In the awarding of the Venire it is ideo praeceptum fuit with an and so it is not certain whence the Venire issued as it ought to be The rule was the judgement should be reversed if cause were not shewn to the contrary Cooke against More Hill 1649. Banc. sup Trin. 1649. rot 645. COoke brought an Action upon the case against More upon an Assumpsit Demurrer to a plea in an â—ction upon an Assumpsit to pay for certain barrels of béer sold and delivered unto him such a day The Defendant pleads specially that he did not assume as the Plaintif hath declared To this plea the Plaintif demurs because that by thus pleading the Plaintif is tied up to a particular day whereas he may give in evidence for any other baâ—rels of beer sold at any time before the Action brought The Court ordered cause to be shewn why the Plaintif should not have judgement upon this demurrer Banbury against Basely Hill 1649. Banc. sup
be used otherwise Barbarism will be induced and circumlocution ought not to be used where there is a proper Latin word to be had to express a thing Ask Iustice agreed with Roll the chief Iustice And the Plaintif was bid take his Iudgement except better matter were shewn to the contrary Hobson against Hudson Hil. 1649 Banc. sup HObson brought an Action upon the case against Hudson for speaking these words of her viz. She went to the Wells to be cured of the French Pox. Vpon Not guilty pleaded and a verdict found for the Plaintif Arrest of Iudgement is an action for words the Defendant moved in Arrest of Iudgement that the words are not actionable because they are incertain words and doe not express that the Plaintif had the French Pox at the time of the speaking of them and the causa dicendi shall not make them actionable Shaftoe on the other side said the words are actionable for these words thou hast been laid of the Pox have been adjudged actionable which are not so scandalous as these Mich. 7 Iac. Thou art a Pocky whore and the Pox hath eaten out the bottom of thy belly were held actionable Roll chief Iustice said the words required consideration but the words séem to imply that the party did believe that she had the French Pox else the would not have gone to be cured and so they are scandalous Ierman Iustice said intentions shall not make words actionable and therefore he conceived they are not actionable Nicholas Iustice said he conceived them prima facie to be actionable for words shall be taken according to the common intendment and an Action on the Case may sometimes be brought upon words spoken by implication and interrogation Aâ—k Iustice held they were actionable But the Court said they would advise Posten Hill 1649. Banc. sup THe Court was moved for the quashing an Endictment For quashing an Endictment for suffering one to escape that was taken for Felony But the Court would not quash it though there was cause but ordered the Defendant should plead to it because they believed he had compounded with the Felon VVyat against Harbye Hil. 1649. Banc. sup Mich. 1649 rot 426. A Writ of Error was brought to reverse a Iudgement given in the Court at Barnestable in an Action of Debt upon an Obligation The Error assigned was Error to reverse a judgment in Debt at B. râ—estable that the place alleged for the payment of the mony sued for is out of the jurisdiction of the Court It was answered that it is said to be at Chitlehampton aforesaid and it doth not appear whether Chitlehampton be within the jurisdiction of the Court or where it is and therefore it shall be intended to be within the jurisdiction Roll chief Iustice said the Declaration is that the Obligation was at Barnestable and the plea is that it was at Chichley which is a forein plea and the plea is not sworn neither is there any demurrer upon the plea but the plea is received and day given to swear it and for not swearing it accordingly a judgement is given against the Plaintiff by default Iudgement whereas it ought to have béen a Iudgement upon a nibil dicit for want of a plea and he said also Fereâ—n plea. that if one plead an insufficient plea although it be a forein plea it is not necessary it should be sworn The Iudgement was ordered to be reversed except cause shewed to the contrary Iones against Blunden Hil. 1649. Banc. sup Mich. 1649. rot 34. A Writ of Error was brought to reverse a Iudgement given in the palace Court at Westminster in an Action of Assault and Battery Error to reverse a Judgement given in the palace Court at Westminster Tryall The Case was this an Action was brought for an Assault and Battery in Surry The Defendant pleads a plea of justification in Middlesex The Plaintiff replyed that he beat him in Southwark which is in Surry de injuria sua propria absque tali causa and this issue was tryed by a Iury of Midlesex The question was whether it were a good tryal The Court would advise Postea VVatson against Norbury and others Hil. 1649 Banc. sup VVAtson brought an Action upon the Case against Norbury a Commissioner upon the Statute of Bankrupt and others Demurrer to a plea in Trespasse upon the Case for the breaking of his house and taking away his goods upon pretence of the said Commission whereas he was no Bankrupt by reason whereof he was empaired in his credit and hindred in his Trade and declares to his damage c. The Defendant pleads that the Plaintiff had heretofore brought an Action of Trespasse against him for the same trespasse and goods taken and had recovered damages against him To this plea the Plaintiff demurred And upon the demurrer the question was whether this plea pleaded by the Defendant be a good plea in abatement of the writ of Trespasse upon the Case now brought or not Abatement Shafto of Councel with the Plaintiff argued that the plea was not good because the matter in this Action upon the Case and the matter of the former Action of Trespasse are not all one but are several and various matters and therefore severall Actions may be brought for them 15. rep f. 43. Sparies case Hob. 493. The Earl of Bedfords case 4. rep â—lades case Petty Brook 105. 4. rep f. 43. Hudsons case 11 Ed. 2. Fitzh Trespasse 207. 2 R. 3. f. 14. 18 E. 4. f. 23. 20 H. 7. f. 9. 12 E. 4. f. 13. Fitzh estopel 78. 7 H. 4. f. 44. And the variances here between the Action upon the Case and the Action of Trespass prove that they are not all one And that there is a difference it is plain for in this Action upon the Case it is said that the Defendant did enter into the Plaintiffs house malitiose but in the former Action of Trespass it was said that he did enter vi et armis which is a plain difference and variance 8 H. 6. f. 27. Cooks Entries fol. 39. And the matters pleaded upon Record in these several Actions do not destroy one another but may well stand together Pasc 2 Car. Laicon and Barnards case And here this Action of the Case is to repair the Plaintiffs credit but the former Action was to recover damages for his goods taken from him An abduxit of Cattel will maintain a chasing and one may therein recover for the chasing and the value also so here both Actions may stand together And there is matter for both Actions and the matter pleaded in Bar is but to encrease the damages and if the special matter alleged in the Action of Trespasse alleged in the Action upon the Case had been lesse yet it is well enough and it is but surplusage and only by way of inducement to prove the scandal and the Defendant here is not at any mischief for the words here
Plaintif demurs The Court said this Debt due upon the bond became not due to the Husband for it is a thing in Action and therefore the plea is not good Iones against Blunden Hill 1649. Banc. sup Mich 1649. rot 34. THis Case formerly spoken to was again moved by Wild Whether a good tryal or no. who held that in regard that the matter triable ariseth from two places and so the venire may be from both places yet it is well enough if it be from any of them and the Court hath jurisdiction in both places and therefore the tryal is well enough in this case Twisden on the other side said that here are two issues in tryal and so it is not within the Statute of Ieofails for that is of force only where one issue is tryed Roll chief Iustice answered here are not two issues for you have made them one by pleading and so it is within the Statute of Ieofails and helped by it Ierman Justice to the same intent Issue Ieofails and so Nicholas and Ask Iustices Roll chief Iustice said that the issue is joyned upon the matter arising in both places and yet it is well enough for the principal matter was in Sâ— Clements Danes Therefore let the judgement be affirmed except better matter be shewn Antea Adstone against Hunter Hill 1469. Banc. sup ADston brought an Action upon the case against Hunter and his Wife for these words spoken of the Plaintif by Hunters wife Arrest of Iudgement in an Action on the Case viz. Iane Adstone did bewitch my good man innuendo her Husband Vpon Not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of judgement that the words were too general and uncertain to raise any scandal and therefore an Action could not be brought for speaking of them Shaftoe of Councel with the Plaintif held that the words are actionable because they declare an Act or thing done and the party is scandalized by the words 4 rep â—eames his case and the words my good man are words well known to express her Husband by as 7 Iac. to say Thou art a healer of Felons was well understood to mean a Concealer of Felons and if the words good man be incertain yet they are certain enough to shew that some body is bewitched for the Act done is certainly enough expressed and the Plaintif is thereby scandalized and besides it is after a Verdict and by it they are made certain and damages are given for speaking them Mich. 15 Car. Com. Banc. Stones case rot â—36 Roll chief Iustice said These words Thou hast bewitched a man are actionable it is a scandal to say One hath killed a man by Witchcraft and he held the words actionable Ierman Iustice said they could not be actionable because by them there is no act of witchcraft expressed Nicholas Iustice said the words are not actionable for thou hast bewitched one may be spoken in a good sence words are but wind spoken in passion sometimes and other times in Iest or merriment Ask Iustice said that the words tend to scandal as they are spoken Averment and shall be intended that she hath bewitched one by Diabolical Art And Roll chief Iustice said It is not necessary to aver what Act of Witch-craft was done And these words Thou hast bewitched me and my Aunt have been adjudged Actionable in this Court It was adjourned to be argued again the next term Hill 1649. Banc sup THe Court was moved to quash an Order of a private Sessions of the peace that was removed hither by Certiorari The Order was To quash a Order of a private Sessions of Peace that one should contribute to half the charge towards the keeping of a Bastard Child because he did suffer a Souldier to get the Child upon the body of his Maid servant The Court said this was not within the Statute of 18 Eliz. and therefore let the Order be quashed Hill 1649. Banc. super A Prohibition to the Court of the Admiralty was prayed for Biâ—ckes a Clark of this Court for libelling against him there for prosecuting a matter at the Common Law which they pretend to belong to their Court For a prohibition to the Admiralty and for granting an injunction against him to stop his proceedings The Court answered there is no libel here this is but a citation to appear and is no Injunction against him but because upon the citation there appeared to be matter of Prohibition contained in it A Prohibition was granted Saunderson against Raisin Hill 1649. Banc. sup VPon a rule to shew cause why a Iudgement should not be reversed To amend a Record after Errore assigned the Court was moved that the Roll wherein the Error assigned was might be amended according to the Original which is right though the Nisi prius Roll be not so Holhead on the other side prayed there might be no amendment but the Iudgment reversed for if Iudgement be given upon an erronious Declaration which is the ground of the Action as it is here it is not good nor is amendable The Court answered this is the fault of the Clark who had the original before him which is the ground of all Amendment and by which he ought to form the Declaration But the matter is that here it is after a Verdict and it will be perillous to attaint the Iury though it being the Clarks fault it be amendable But let it rest till the next term and in the mean time we will advise Williamson against Mead. Hill 1649. Banc. sup Mich. 1649. rot 428. VVIlliamson brought an Action upon the Case against Meade Arrest of Judgement is an action upon an Assumpsit and declared upon three Assumpsits made by the Defendant to the Plaintif that the Defendants son should pay such a sum of money to the Plaintif for his boarding with him when he should be thereunto required upon non Assumpsit pleaded and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement That the Plaintif doth not shew that he did require the Son to pay the sum of money which the Defendant did assume should be paid upon request but only saith that the Defendant licet saepius requisitus non solvit The Iudgement was arrested till cause should be shewn to the contrary The same day it was moved again and the Councel urged that the request was not necessary to be made and prayed for judgement But Roll Chief Iustice answered that this was a collateral promise Request and therefore the request must be averred to be made to the Son Therefore the Plaintif can have no judgement and so nil capiat per billam was ruled to be entred Hudson Hill 1649. Banc. sup THe Court was moved that there was a scire facias issued out to certifie Errors For time to assign Errors and time was desired to assign them But the Court answered
the Statute of limitations of Actions in Bar of the Action to this Plea the Plaintif demurred Hales held that this action grounded upon the Statute is not within the Statute of limitations of Actions of 21 Iac. because it is not a meer Action on the Case at the Common Law but an Action upon the Case grounded upon the Statute of Monopolies But Twisden on the other side said that a Monopoly is an offence at the Common Law Monopoly for which an Action of the Case did lie before the Statute and that the Statute was made but to inflict a greater punishment for the offence and so it is within the Statute of limitations of Actions And 2ly the very words of the Statute say that all Actions shall be brought within six years and he that says all without limitation Statuâ—e of limitations excludes none and by consequence this Action is not excluded 3ly The end of the Statute of limitations was to quiet sales and therefore the Statute shall be largely interpreted because made for so publique a good Adjourned to the next term to be argued again Pasch 1649. Banc. sup VPon a verdict given against a Hundred that was sued in an Action upon the Statute of Winchester of Hue and Cries Arrest of Iudgement in an Action upon the Statute of Winchester Bill Original It was moved for the Hundred in Arrest of Iudgement that the Hundred was sued by Bill whereas it ought to have been sued by Original But the Court over-ruled the Exception and said that there are many Presidents to prove that such Actions may be commenced as well by Bill as by Original Pasch 1649. Banc. sup LEtchmore moved to quash an Inquisition taken against one upon the Statute of West 2. for the throwing down of Enclosures To quash an Inquisition denied But the Court answered that it was not proper to move to quash the Inquisition because the Defendant came in upon process and therefore he must either traverse or plead to the Inquisition Letchmore replyed that the Inquisition was so uncertain that the Defendant could not tell how to plead to it Plea Traverse But the Court answered he might plead to the Distringas And that the monies already levied for the offence should rest in the Sherifs hand until the tryal Hamond against Ireland Pasch 1649. Banc. sup Hill 1649. rot 818. VPon a Verdict given in an Ejectione firmae Arrest of Iudgement in an Ejectine firmae It was moved in Arrest of Iudgement that the Plaintif declares that the Defendant ejected him ex uno Cottagio whereas an Ejectione firmae lies not of a Cottage no more than a praecipe quod reddat lies of a Cottage But the Court answered that an ejectment doth lie of a Cottage because the description of the thing by that name is sufficient and certain enough to shew the Sherif of what to deliver the possession of Ejectment Recovery yet it was said that a recovery lies not of a Cottage Rethorick and Chapels case 10 Iac. was cited that an Ejectione lies of a Cottage and also a praecipe quod reddat VVood against Topham Pasch 1649. Banc. sup VVOod brought an Action upon the Case against Topham quare filium suum haeredem rapuit et maritavit Arrest of Iudgement in an action upon the case and obteined a Verdict against the Defendant In Arrest of judgement moved for the Defendant these exceptions were taken against the Declaration 1. That it doth not say haeredem apparentem but only filium haeredem 2ly It doth not say rapuit contra voluntatem but only rapuit 3ly It doth not set forth that the heir was within age 4ly It doth not say Cujus maritagium ad ipsum pertiner But the last Exception only was insisted upon Wilmot of Councel with the Plaintif to proove that that Exception was not material cited one Grayes case Pasch 29 Eliz. Banc. reg and the Books of 12 H. 4. f. 16. and 23 E. 3. Brook Tit. Trespass 43. But Hales urged that the last Exception was not answered Case Roll chief Iustice said That an Action quare filium haeredem suum rapuit will lie although the heir be of full age for the Father hath the mariage of his Son although he have no estate to leave unto him Adjourned to the next Term. Postea 227. Dawkes versus Payton Pasch 1469. Banc. sup Pasch 1650. rot 306. AN Infant brought an Action in this Court Error brought in the Upper Bench upon a Iudgement given there and had a Verdict and a Iudgement the Defendant brought a writ of Error in the same Court to reverse this judgement and it was assigned for Error that the Infant brought his Action in propria persona whereas he ought to have sued per guardianum and this is Error at the Common Law and is not helped by the Statute of Ieofails and it was argued that the writ of Error may be well brought in this Court to reverse a judgement given here if the Error assigned be matter in fact as it is in this case for by such a writ of Error the judgement of the Court is not called in question as it would be if the Error assigned were matter in Law and these Books were cited Error viz. 7 H. 6. 28. Dyer 196. Mich. 25 26. Eliz. Banc. reg Hales on the other side argued that the writ of Error did not lie And he made 2 questions 1. Whether the writ of Error did lie at all 2ly If it did lie in an other Term and he said that admitting the writ of Error doth lie yet it ought to have been brought the same Term wherein the judgement was given but so it is not here and therefore it is not well brought And 2ly If the Error assigned be Error yet it is helped by the Statute of 21 Iac. of Ieofails But if it be not yet the Error assigned here is not assignable for it doth not appear whether the party appeared per guardianum or not for the party is a privileged person The Court answered we cannot know whether the party be within age or of full age and therefore know not whether he ought to appear by Attorny or by Guardian but for Error in matter of fact in a judgement given in this Court a writ of Error will lie here well enough and it is all one whether the writ be brought the same Term or in another Term. But bring us Books and we will advise Postea Viccarye against Barnes Pasch 1650. Banc. sup AN Action upon the case was brought by a Mercer against the Defendant for speaking these words of him Thou art a Cuckold Arrest of Iudgement in an Action upon the Case for words and a Cuckoldly Rascal and art not able to pay thy debts and art not worth a Groat The Plaintif had a Verdict and upon a motion in Arrest of judgement because the words were supposed not
actionable the judgement was formerly stayed till the Plaintif should move At this day Pepes for the Plaintif prays for judgement because he held the words were actionable and cited one Bragges Case adjudged and said that the Plaintif had laid a special damage by the words Windham on the other side said That the Plaintif had not laid any special damage as Pepes supposeth but only allegeth a general damage namely that he by speaking of the words lost his credit and could not buy wares upon trust as he used to do before but only for ready money and so there can be no issue joyned Ierman Iustice held the words actionable and also Roll the chief Iustice for he said it was a hinderance to him in his Trade to be so spoken of although they bring him not within the Statute of Bankrupt and he cited 11 Car. Iackson and Hewes his case where an Action was brought by Iackson being a Grasier against Hewes for saying of him Thou art a base beggarly Rogue and art not able to pay thy debts Nicholas Justice held the words actionable but Ask Iustice doubted for such words may peradventure be true it they be spoken of a young Tradesman that begins with little And said that the chief question is whether the averment of the damage be well alleged and he held it was not because it was so general that no issue can be joyned upon it Roll chief Iustice said the words are found by the Verdict to be spoke falso et malitiose And therefore let the Plaintif have his Iudgement except better matter be shewed Pasch 1650. Banc. sup AN Information was exhibited in this Court against one for engrossing of Hay the Defendant appeared and pleaded to the information For the Defendant to try an Information at his own charge denied Indictment Information the Plaintif moved that the Defendant might be ordered to carry the cause down to be tryed at the Assizes at his own charge But the Court answered that they could make no such Order because the sute was not upon an Endictment which is at the sute of the Custodes but upon an information which is at the sute of the party Cater against Startute Trin. 1650. Banc. sup Hill 1649. rot 1025. THe Plaintif brought an Action of Debt upon an Obligation to stand to an award The Defendant pleaded that there was no award made Demurrer to a replication in debt upon an Obligation to stand to an award The Plaintif replies that there was an award made and sets forth the award and assigns the breach Vpon this the Defendant demurs and for cause shews that part of the award was that one of the parties should make such a general release to the other as Councel should advise so that the Councel are made Arbitrators in regard that a judicial act is referred to them which ought not to be for the Arbitrators cannot delegate their authority to others Ministerial Act Judicial and 8 E. 4. f. 10. was cited to this purpose But Wild on the other side said that the referring of the making of the releases to Councel was warrantable because it is but a ministerial act and not a judicial as is objected Roll chief Iustice said that there is no judicial thing left for the Councel to do but only a ministerial act and therefore it is well enough but it had been otherwise had it been a judicial act for that had béen for the Arbitrators to delegate their anthority to others which is not warrantable because it is contrary to the submission of the parties but to delegate a ministerial act is not contrary And with him the Court agreed and ordered the Plaintif to take his Iudgement except better matter were shewn Saturday next Dawkes against Payton Trin. 1650. Banc. sup Pasch 1650. rot 306. AN Action was ordered out of the Chancery to be tryed in this Court Whereupon the cause was tryed Error to reverse a judgement in the Upper Bench. upon an issue directed out of the Chancerie and a Iudgement upon a Verdict was given for the Plaintif The Defendant brings a writ of Error here to reverse this judgement The first question was whether it did sufficiently appear by the Record whether the party did appear in person or by Guardian Hales held that it did not appear but that it belongs to the other party to shew it for he ought to have all the Record upon which the Error is assigned A second question was Whether the Error assigned if it be Error be not helped after a Verdict by the Statute of 21 Iac. Hales held that however the party appeared whether by Guardian or in proper person it is helped by the Statute of 21 Iac. and cannot be assigned here for Error and the writ of Error that is brought is as well to reverse the judgement given here as the former judgement given in Chancery which cannot be for this Court cannot reverse their own Iudgement except it be for Error in process 1â— H. 6. 2. 44. 7 H. 6. f. 28. nor can this Court reverse their own judgement for Error in fact because it is to overthrow their own act yet the Chequer chamber may doe it yet there it is more proper to appeal to the Parliament and he said that the Cases of 2 Rich. 3. f. 1. and Dyer 1â—5 cited to be resolved have been since disputed and so prayed the writ of Error might abate Roll chief Iustice said that for the first matter whether it appears by the assignment of the party whether the appearance were per Guardianum Appearance or otherwise we will not imagin either Attorney or Guardian in the Case but that he appeared in propria persona because nothing to the contrary appears by the Record Error and if it be otherwise you ought to have shewn it And for the matter whether it be Error to appear by Attorney where the party ought to appear by his Guardian he held it was Error and that it is not helped by the Statute of 21 Iac. because it is more dangerous for an Infant to appear in propria persona or per Guardianum than per Attornatum for against an Attorney he may have remedy but not against himself or his Guardian and this is casus omissus out of the Statute And as to the question Casus omissus whether this Court may reverse their own judgement he held that they may for Error in matter of fact as the case here is though they cannot for Error in matter in Law as was adjudged Mich. 25. rot 96. and Mich. 5 Jac. in Watkins and Giffins case and if it should not be so here the party would be without remedy for he can have no remedy in the Chequer Chamber and there is no president in Parliament be to relieved there and it is neither against reason nor any Rule of Law for this Court to do it Vpon this the Councel moved to quash the
is not within the Iurisdiction of the Court and so they cannot hold plea for it at Barnestable and the judgement was given upon a nihil dicit because the Plea being forein the Defendant would not swear it which in this case he is not bound to doe Roll chief Iustice If it appear by the Declaration that the money was to be paid out of the jurisdiction of the Court jurisdiction the Iudgement is not good and it is not necessary to swear the Plea if it appears upon the Obligation that the monies were to be paid out of the jurisdiction of the Court Plea and he plead payment according to the Condition Iudgement but if one will not swear a forein Plea where he ought to doe it the Plaintif may enter judgement upon a nihil dicit for such a forein Plea not sworn is no Plea upon the matter The Iudgement was reversed nisi c. Ley against Anderton Trin. 1650. Banc. sup Pasch 1650. rot 524. LEy brought a writ of Error to reverse a judgement given in the Common Pleas for Anderton in an Action of Debt upon an Obligation Error to reverse a judgement in debt upon an Obligation and Assigns for Error that the Obligor in the Obligation upon which the Action was brought made his wife his Executrix and dyed and that the wife being Executrix dyed intestate and that the Plaintif in the Action took administration of the goods and Chattels of the feme and brought the action of Debt upon an Obligation as Administrator to the wife whereas the Plaintif ought first to have taken Letters of Administration de bonis non administratis of the Testator and so to have brought his Action Administration To which the Court agreed and said it is a plain fault and reversed the Iudgement nisi c. Elsy against Mawdit Trin. 1650. Banc. sup ELsy brought an action of Assault and Battery against Mawdit an Attorny of this Court Whether the Huâ—band must put in bail for his wife in assault and battery and his wife The Defendant Mawdit appeared in propria persona and his wife was in custodia and so the Plaintif declared against them the question here was whether Mawdit the Defendant ought not to put in bail for his wife Burrel of Councel with the Defendant argued that the Declaration was not good because that the Husband Mawdit ought to have put in bail for his Wife and cited Smith and Smiths case and Mich. 17 Car. Simon Fanshaws case and Dyer 377 a. and Brook title Privilege 353 a. and 9 rep Roll chief Iustice said he ought to put in bail therefore the Plaintif nil capiat per billam Bail because his Declaration is not good against her in Custodia The City of London against De roy Trin. 1650. Banc. sup LAtch shews for cause why a procedendo should not be granted to London against De roy Cause why a a procedendo should not be granted to London who upon a tryal against him was committed in London for using the Trade of a working Gold-smith and a working Ieweller not having served as an Apprentise to the Trade and was brought hither by a Habeas Corpus 1. That the Declaration is founded upon a By-law and that By-law is founded upon a Custom and if either the Custom or By-law be not good in all patts the Declaration is naught and here the Custom is certified in the negative and this is oppositum in subjecto and meerly contradictory in it self By-law 8 E. 3. 77. and the By-law also that is certified is not certain and it is also unreasonable for every stroke the Defendant strikes is using of his Trade and it is unreasonable he should pay five pound for every stroke 2ly The Declaration is not applied to the By-law upon which it is grounded for the doing of a thing one day is not using to doe it and the words diversis vicibus do not help it for they are not applyed to his working as a Ieweller but to his working as a Goldsmith only also it doth not appear who is to have the forfeiture for one third part of the fine set upon him and it is not said that he gained his living by the Trade or sale of the commodity wrought and the words of using it pro lucro et proficuo do not help it for it may be he uses it for his private use and that is to his profit though he sell not the commodity Next it is unreasonable that a stranger an Alfen shall be restrained by a By-law made 40 years ago Notice where of he had no notice and that by reason of such a Law he should be punished for doing a thing which the Common Law allows namely to get his own living It is also said Non existens liber homo usus est arte c. which are words very incertain for by the offence so expressed every Apprentice may be punished for working for an Apprentice is not Liber homo Maynard on the other side cited 5 E. 3. that a negative with an affirmative implyed is good and that it is exclusive of Strangers and inclusive of the Citizens And the offence is the matter not the time of the Defendants using the Trade it is also well designed in all points to what use the fine is to be put and if there be Error they ought to bring a writ of Error and to except to the Declaration And this case cannot be likened to an Apprentises working for he uses the Trade not for himself but his Masters benefit The Court desired books and adjourned it till the next Term. Custodes libert c. against White VVHite was outlawed in an Action of Trespass To reverse an Outlawry Abreviation It was moved to reverse the Outlawry because in the exigent it was Utlest being put for an abbreviation of utlagatus est and upon this exception it was reversed Disne against Grigson Trin. 1650. Banc. sup Hill 1649. rot 98. DIsne brought an Action of Debt upon an Obligation against Grigson Demurrer after an issue joyned the condition was for the payment of a certain sum of money upon the resignation of a living and a certain annual sum at two payments The Plaintif aseigns a breach in not paying such a sum at such a day upon this the issue was entred and after the Defendant demurs Roll chief Iustice The Defendant is a Mad-man and we cannot give Iudgement against him stay therefore till he is recovered Yet take your Iudgement nisi Iudgement Error c. for the other may bring his writ of Error if he will Nota. Bernard against Levit. Trin. 1650. Banc. sup BErnard brought a writ of Error against Levit to reverse a Iudgement given against him in the Common Pleas in an action upon the case for speaking these words of him Thou Bernard art a base fellow Error to reverse a judgement in an Action
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
verdict in the case by which it is helped Ierman Iustice said there is only an implication to shew in what Parish the lands lie and that is not a violent implication neither and therefore the Declaration cannot be good But Roll Chief Iustice answered What if the Plaintif had only said that the tithes belonged unto him And it is here after a verdict and the Declaration is helped by it Declaration but if you had demurred to the Declaration it would have been ruled to be naught Demurrer And if the tithes do belong to the Plaintif why may it not be implyed that they belong to him as Parson of the Parish and are of lands lying within the Parish But let us see a Book and speak to it again the next Term. Robinson against VValker Trin. 1650. Banc. sup Pasc 1650. rot 251. WAlker brought an Action upon the Case upon an indebitatus Assumpsit for wares sold Demurrer for doubleness in a replication The Defendant pleaded the Statute of limitations of Actions in Bar. The Plaintif replyed that he is a Merchant and was in Ireland and did not return thence till such a time and shews precisely when and that within six years after his return he brought this action Vpon this Replication The Defendant demurred and upon the Demurrer Iudgement was given for the Plaintif The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error 1. That the replication of the Plaintif upon which the Demurrer was joyned is double For first he allegeth that he is a Merchant so is a person out of the Statute of limitations And secondly he shews that he brought his Action within 6 years after his return which is needless 2ly He saith That he did not return into England whereas the Statute is general If he return and he may return into Wales But to that the Court answered that to return into England or into Wales was all one as to the intent of the Statute 3ly The Action was an Action upon the Case that Action is not mentioned in the Statute But Roll chief Iustice said this is no new Case for it hath been ruled that an Action upon the Case is within the Statute Case Ierman Iustice said the Proviso of the Statute is intended to be as large as the body of the Act. Nicholas Iustice to the same effect and said that the word Trespass mentioned in the Act doth comprise in it an Action upon the Case The Iudgement was affirmed nisi Trin. 1650. Banc. sup AN Endictment was quashed To quash an Endictment because it was said to be taken ad generalem Sessionem Pacis Custodum libertatis Angliae where it ought to be Sessionem Pacis publicae by Ierman Iustice absente Roll. Treton against Squire Trin. 1650. Banc. sup THe Court was moved that a Prisoner in the Marshalsea might have liberty by rule of Court to be at a tryal to give his testimony as a Witness in the cause To have a Prisoner to testifie at a Trial. Ierman Iustice absente Roll answered Bring him thither by a Habeas Corpus but take a good guard with him for it shall be at your peril if he escape Habeas Corpus and he shall be brought thither and carried back again at your own charge Gibs against Price Trin. 1650. Banc. sup GIbs a Barrester of Lincolns Inne brought an action upon the case against Price for speaking these words of him Arrest of Iudgement in an Action for words William Gibs hath dealt falsely with me being his Clyent and hath joyned with mine Adversary Vpon not guilty pleaded there was an issue joyned and a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words were not actionable But the Court held clearly the words were actionable and were ordering judgement to be entred for the Plaintif Case but because another exception was taken That the Plaintif doth not aver that he was a Practiser at the time of the bringing of his Action Averment and because it was also objected that the Plaintif was now sequestred Therefore the rule was that the Record or the Postea should be brought into the Court and that Councel should again be heard This was moved again And Roll chief Iustice said That the Plaintif ought to aver he is a Practiser for he may be a Barrester and not practise But the Court would advise Boomer against Cleve Trin. 1650. Banc. sup IN this Case in Arrest of Iudgement upon a verdict given for the Plaintif in an Action upon the Stat. of Winch. 12 E. 1. of Hue Cryes Arrest of Iudgement in an Action upon the Statute of 12 E. â— of Hue and Cries Recital the question being whether the Plaintif in his Declaration had mis-recited the Statute or not Roll chief Iustice took this difference that if one bring an Action upon a Statute and in his Declaration mis-recite it in words which go to the ground of the Action though there be a Verdict in the case yet it is not helped but if the mis-recital be in words which doe not goe to the ground of the Action it is helped after Verdict by the Statute of Ieofails Ieofails Bynion against Trotter Mich. 1650. Banc. sup BYnion brought an Action upon the Case against Trotter for speaking these words of him Arrest of Iudgement in an Action for words He is a Thief and hath stollen my Turnips and my grass Vpon a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words are not actionable because the grass might be growing upon the ground and the Turnips in the ground Case and so part of the Freehold But Roll chief Iustice held the words are actionable for the Turnips shall be intended to be pulled up and the Grass mowed the last words are not cumulative Therefore let the Defendant shew cause why the Plaintif shall not have his Iudgement Pinder against Dawkes Mich. 1650. Banc. sup PInder brought an Action of Trespass against Dawkes Error to reverse a Iudgement in Trespass quare clausum fregit and declares quare clausum fregit contra pacem publicam et postes et palos suos ibidem nuper inventos cepit et asportavit The Plaintif hath a Verdict and a judgement the Defendant brings a writ of Error to reverse the judgement and assigns for Error 1. That the Trespass was done in the late Kings time and therefore the Declaration should have been contra pacem Domini Regis and not publicam 2ly That the Declaration is incertain for it appears not whether the Posts and Pales were fixed to the ground or no nor how many of them there were and so the nature of the offence cannot be certainly known But the Court held that the first exception was but a mistake of the Clark and so may be amended and as it is there is no repugnancy in it
upon the Assumpsit for this is no new promise in Law and it is all one here as if the promise had been set forth that he promised to pay when he should be thereunto required And whereas it hath been objected that the debt upon the Accompt appears to be due by two and that the Action therefore ought to have been brought against them both and not against one of them as it is here he answered that the Action may be brought against both or any one of them at the election of the party and the custom of Merchants makes no difference in the case for the Law creates the debt and makes both lyable though the custom give election to sue one or both of them and so one may here be sued for the debt is by the custom transferred upon one although it be the debt of both And here both the dayes viz. according to the old stile and according to the new were past before the action brought Roll chief Iustice held Date that the Plaintiff ought to have Iudgement but that day shall be taken according to the old stile Averment if there be not a speciall averment to the contrary and so there is variance between the pleading and the verdict but this doth not hurt here for the Action doth not fail although the day be limited upon the evidence otherwise than it is in the Declaration for the debt is the duty arising upon the accompt made between the parties Time and the day upon the Assumpsit for the payment is not material for the Action lies though no Assumpsit had been made Actual promise Debt and here is no need of an actual promise But if an Assumpsit be made upon a contract there is no precedent duty and so there is a difference between one case and the other And if two be found in arrearages of accompt Custom by the custom of Merchants one may be charged to pay all the debt as well as both Ierman Iustice as Roll and said that where the day is part of the contract it ought to be alleged to be past at the time of the Action brought but it is not so here and also both the dayes are here past Nicholas to the same purpose Roll chief Iustice If the Action be specially laid and the day made part of it there if the Plaintiff fail in the day his action also fails And if one declare generally for 100 l. upon an indebitatus and it appears upon the evidence that the Defendant did owe the Plaintiff but 10 l. yet the Plaintif shall recover But if the Plaintiff declare specially Declaration General Special viz. for a horse sold for so much and by the evidence it appears he owed a lesse sum there the Plaintiff shall not recover for it shall be intended another contract and not that upon which the Action is brought and so Iudgement for the Plaintiff nisi c. Maynard spake again to it But Iudgement was given for the Plaintiff upon the former reasons Paul VVilliams and his wife against the Custodes c. Hill 1650. Banc. sup PAul Williams and his wife had a Iudgement given against them at the Sessions at Hickes Hall Error to reverse a judgment at the Sessions for speaking words upon an endictment for speaking words against the Lord Fairefax whereupon they brought a Writ of Error in this Court to reverse the Iudgement The Exceptions taken were these 1. That the Iustices there had not power to hold plea for words spoken To this the Court answered that they have power to hold plea for such words because they tend to breach of the peace and the speaking of them is a great misdemenour The second exception was that it is said juratores jurati electi triatiad veritatem dicunt ad dicendum is left out 3ly There issued out a capias pro fine against the parties whereas there was no fine set upon them The Court to that answered that a fine was set Wild took another exception viz. that the endictment ought not to be joynt against two for words spoken by them both Endictment but severall endictments for the words of one are not the words of the other though they be the same words But the Court answered Case that a joynt endictment was good enough although a joynt Action of the Case cannot be brought against two for words spoken by them both He took also this Exception that it doth not appear that the parties were tryed in the Court for it is only said that they were ducti ad barram and then that they were removed from Hickes Hall to Newgate The Court answered that the words ducti ad barram were sufficient and it is needless to say they were tryed in Court And therefore the whole matter rests upon the 2 d. Exception whether the want of the words ad dicendum be Error and for that let the Clark of the peace be here on VVednesday next and then speak again to it and then by the whole Court the Exception was adjudged good And the Clark of the peace was fined 40 l. Masterman against Rusholme Hill 1650. Banc. sup Pasc 1650. rot 594. A Writ of Error was brought to reverse a Iudgement given in an Action upon the Case upon an Assumpsit Error to reverse a judgement in an Action upon an Assumpsit to pay Mariners wages the Exceptions taken were first that the plaint was for 10 l. and the Declaration is to the damages of 20 l. and so there is variance between the plaint and the Declaration Next the promise is laid to be made the 1. of May 1641 to serve the Defendant for a year and he saith that he served him from the 1. of May for a year whereas the 1. of May ought to be excluded so that he ought to say that he served for a year from the making of the promise Roll chief Iustice said Variance that there is variance between the plaint and the Declaration but it is helped by the verdict for that finds that he hath served a whole year But two other exceptions were taken at the Bar. 1. That the Declaration was pro salore insteed of Salario And 2ly It is said deserviret for deservivit Error And upon these the Court ordered the Defendant in the VVrit of error to shew cause why the Iudgement should not be reversed Hill 1650. Banc. sup AN Action upon the Case was brought in London for calling a woman whore the Defendant removed the cause into this Court For a Procedendo into London whereupon the Plaintiff moved for a procedendo to try it in London where the action was first brought Roll chief Iustice held that a procedendo was to be granted for we cannot determine the Custom but if a Iudgement be given in London if it be erroneous a writ of Error may be brought in the Hustings to try the custom therefore
for septuagent and Pary and Dayes case quinquegent for quinquagint and these held no materiall variances Latch on the other side said the word in the Bond is uncertain and the condition hath nothing in it to reduce it to a certain signification and if it make any certainty in it it must make it signifie 400 l. and then the Plaintiff hath failed in his Declarasion and Hobarts case differs from this and as for Osborns case it is variously reported and so not to be relyed on Roll chief Iustice What say you to sessanta But the question here is what shall be meant by the word whether 40. or 400. And in Fiâ—zâ—â— berts case Iudgement was given upon a demurrer Variance that gent for gint was a material variance and our case is all one with that If the doubt be whether it should be 40. or 400. how shall we know the intent of the partyes and if it be certain it must he understood 400. and the Action is brought but for 40. l. 44 Eliz. Mich. rot 1301. Gray and Davis case Sexgint was adjudged to be a Bond of 60 l. and not of 600 l. And it is the gent. and gint in all the cases that makes the difference And the case of sessanta comes not to our case and so concluded Iudgement to be against the Plaintiff Ierman Nicholas and Ask Iustices of the same opinion Nicholas Iustice said that false Latin in a Bond doth not make it naught but he held this Bond was for 400 l. and not 40 l. and it is not incertain for the grammar rule ginta notat decem sed genta numero centum doth hold here Antea Gay against Gay Pasc 1651. Banc. sup Trin. 1650. rot 1350. VPon a speciall verdict found in a replevin Whether an estate tail or fee conditionall The case was this A man seised of a Copyhold Borough English devised it to H. his grandchild and to his Heirs and if he dye during the life of his mother the remainder to H. his younger brother and to his heirs The question here was whether here be an Estate tail in H. or a Fee simple executory If it be an Estate tail then the devise was said not good because it is of a Copyhold but if it be a Fersimple Limitation then it is a good devise Roll chief Iustice said that a limitation of an inheritance after an absolute Fee simple is not a good limitation for this would be to make a perpetuity which the Law will not admit Perpetuity but if it be upon a contingent Fee simple it is otherwise Adjournatur Postea Heale against Greene. Pasc 1651. Banc. sup Hill 649 rot 370. IN an Action of Trespass and ejectment Case upon a special verdict in trespass and ejectment upon a speciall verdict sound the case proved to be this A man seised of a manor that had divers Tenants that held for lives by old rents deviseth it to his wife during her life with power to let and set and make estates out of them in as ample maner as the Testator might if he were living The questions were made by Latch 1. Whether this power given her to set and set c. doth not alter her Estate for life in the Lands devised to her 2ly Whether this power given her by the Will adds any power to her estate for life to make estates and he held for the first that the power given her did not alter her Estate And 2ly that it ads no power unto her Estate because the clause in the Will is one entire clause and not double and accumulative and so she can make no greater Estates than her estate for life will bear And for the obiection that is made That then the words that limit the power to her are void and idle He answered that it is not necessary that all the words in a Will should give something but some words may be explanatory of other words and so are these words here and yet the words here may add something to her Estate viz. to enable her to make Estates without impeachment of waste And the words shall not be intended of the time of Execution of the Estates made by the Feme for then they are idle Hill 1 Car. Banc. Reg. Danyel and Vplins case One may dispose an estate by Will for life with power to make Estates to continue after the death of the party that made them But here the estate is made only out of the interest of the wife which cannot endure after her life Pasc 44. Eliz. Bible and Dringhouse and so prayes Iudgement for the Plaintiff Hales for the Defendant made these questions 1. What power was given by the Will 2ly Whether it were well executed and he held the feme being executrix hath but an Estate for life But she hath a power to make estates as she hath done There is no question but such a power may be added The question only is if this power be added here in our case and he said it was added by the express words of the will for else those words are frivolous and operate nothing In Danyel and Vplins case cited which was entred 20 Iac. Hill 720. there is no express Estate given to the party but a meer power only and it was not by reason of the words added for they are only conjunctive words And Iustice Whitlock held there that the first words gave the power Though Iustice Iones differed in opinion and that case is the very same with ours The reason in our case That the words give power to the feme may appear by the comparing this part of the Will with the other parts of it In other parts of the Will where things are devised to his wife these words here used are not added and that argues that the Testator intended the Feme more power than in other things devised to her and the words themselves being a devise of a manor proves by the nature of the thing that the Testator intended to give power to the Feme to make Estates out of the manor And it cannot be intended that the words In as ample maner c do only give the feme power to assign over her term Vaughan and Longs case 24 C. the words were adjudged to be words to enlarge the power of the Legatée and so are they here And the subsequent clause during the term of her life restrains not the power for these words may be either referred to the Estates to be made or to the time of making them and here they are referred to the execution of the power and this is more suitable to the intention of the party in ordinary reason and they are added to expound the intent viz. that the remainder limited over shall not hinder the feme for he hath not barred her out and hath imposed this trust in her as Executrix and as Legatee And for the 2d point here is a good Execution of
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
words of a will which were these I give all my free lands wheresoever to my Brother Iohn Sanders and his heirs upon condition that he suffer my wife to enjoy all my Freelands in Holford for life the Testator having only a portion of tithes of inheritance in Holford and no lands The question here was whether this portion of tithes shall be accompted free lands within the intent of the will and so the wife be to have them during her life Twisden held the tithes were not devised by the will to the Feme for if I devise my fee-simple lands to Iohn a Stile and his heirs tithes do not pass by this devise for tithes are a collateral thing arising out of land and not part of the land it self 42 Ed. 3. f. 13. 10 Iac. Moyle and Ewers case 31 Eliz. Perkins and Hyndes case In the will here they pass not for there are no words in the will to devise them nor can the words he so expounded and here are other lands devised to satisfie the words of the will A term for years hath more relation to land than tithes and a term could not have passed by the words of the will Next the second Clause doth not pass the tithes for there is no such thing as is expressed in it but if it should pass to the wise by implication yet it cannot pass to Iohn Sanders the Brother for there are neither expresse words nor any implication to devise this portion of tithes to him but the contrary rather is to be collected from the Will Wadham Windham on the other side answered that the Testator calls the tithes in Holford his free lands It is true generally that by the devise of lands tithes do not pass but in a will by the intent of the Devisor they may pass and the word land includes all real things in common intention and legal construction as Lutrels Case is 1 Mar. Bro. Tit. Elegit An Elegit may be of a rent and tithes have a nearer relation to land than rent have 2ly Here is an apparent intention to devise the tithes for he explains his meaning in his second clause of the Will that he intends tithes by the word lands 44 Eliz. Com. Banc. Gery against Gery the question there was what passed by the word rents whether lands passed The words were as to all my lands in Dale I devise my rents c. and here the matter comes in by a Proviso which enlarges the matter Trin. 3 Iac. Fitz. Williams case One devised all his goods Iewels and Plate excepting his lease in C There it was adjudged that all his other Leases passed 4 Ed. â— Br. grants 51. Another circumstance in the Will enforceth this construction viz. the word wheresoever which word expresseth the intent of the Devisor to be so otherwise that word will be idle and to no purpose Hob. rep Stukely and Butlers case It may also appear out of the body of the Will for it appears thereby that his Daughter was provided for in his will by his personal estateâ— and that the intention was to dispose of his lands to the Heir and his Copyhold lands which he had in Holford were surrendred at the time of the making of the Will and so the devise cannot refer to them and besides this is called free lands which distinguisheth them from Copyhold lands and so he prayed judgement for the Plaintif Roll chief Iustice There is a Condition annexed to the Devise Condition that his wife shall enjoy this land though the words in the Will are not very proper to erpress it but we must consider them as used in a Will not in a conveyance Nicholas Iustice said the Devisor himself calls them free-holds and this distinguisheth them from Copyhold lands Adjourned till Saturday following to be argued again Dowse against Masters Pasc 1651. Banc. sup DOwse brought an Action of Debt upon an Indebitatus Assumpsit against Masters for five pound Demurrer to a plea in Debt upon Indebitatus assumpsit in which the Defendant pleaded that he did deliver bils to the Plaintif to the value of 6 l. in which the Plaintif was indebted to him which bills the Plaintif did accept in full satisfaction the Plaintif replyed protestando that he was not indebted to the Defendant that he did not receive bills to the value of 6 l. in satisfaction Vpon this a Demurrer was joyned Roll chief Iustice said Plea the Plea of the Defendant is ill for he doth not say that he delivered the Bills in full satisfaction but that the Plaintif received them in full satisfaction which is not good for the Plaintifs receiving of the Bills must be as they were delivered and not other ways and that is not expressed Therefore let the Plaintif take his judgement nisi c. Ross against Lawrence Pasch 1651. Banc. sup ROss brought an Action of the Case against Lawrence for speaking these Welch words of him viz. Dedingues Will Rols in mudon Arrest of Iudgement in an Action upon the case for Welch words Englished which are in English William Ross hath forsworn himself upon Issue joyned and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English and so the Action lies not Roll chief Iustice If the words sound in Welch that the Plaintif was perjured yet if the Plaintif do English them in English which doth not amount to perjury it is ill Case and an action will not lie for them Therefore let judgement be stayed Peck against Ingram Pasch 1651. Banc. sup PEck brought an Action upon the Case upon an Assumpsit and declares Arrest of Judgement in an action upon the case upon an Assumpsit that the Defendant in consideration that she the Plaintif would leave her Fathers house and come to the House of the Defendant in such a place did assume and promise unto her that he would mary her and that thereupon she did leave her Fathers House and did come to the Defendants House et obtulit se in maritagium conjungi and because he had not performed his promise Actio accrevit Vpon issue joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took Exceptions that the Plaintif did not shew in her Declaration when she left her Fathers House and came to the Defendants house nor that she gave him any notice thereof Wild moved for judgement notwithstanding the Exceptions for he said though it be not expresly said that she gave the Defendant notice when she came to his House yet it is said quod obtulit se in maritagium conjungi which implies the Defendant had notice and besides here is no need of notice for the Assumpsit is that if she will come to the Defendants house he will marry her and it is not said that when she comes he will marry her so that he is bound by
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 judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
declared Arrest of Judgement in an action upon the Case upon an Assumpsit that whereas there was a speech concerning mariage between her the Plaintif and Smith the Defendant in consideration that she the Plaintif would marry the Defendant the Defendant did assume and promise to her the Plaintif that he would marry her and that afterwards the Defendant in consideration that the Plaintif would discharge the Defendant of this promise the Defendant did assume and promise that he would pay unto her the Plaintif a thousand pound and that she did discharge the Defendant of his promise of mariage and yet the Defendant had not paid the 1000 l. according to his promise Vpon non assumpsit pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that there is mention of two promises in the Declaration and that it is incertain to which promise the Declaration relates 2ly That there is no temporal consideration alleged but only a promise to dissolve a Contract of Mariage which is a thing illegal and so no consideration Roll chief Iustice answered that here is a mutual promise made by both parties Promise Case and there have been divers actions of late times brought for this cause and they have been adjudged good and the engagement to marry is not meerly a a spiritual matter and this Action is not to compell the mariage upon the Contract but to recover damages for not doing it and it is like to a wager and here is a temporal loss and therefore a temporal Action doth lie But it was adjourned till next Term to be argued again and then judgement was given for the Plaintif for the Court held that the dis-engagement shall be intended to the party himself and here is no need to expresse notice given of it Postea Kenedy against Fisher Mich. 1651. Banc. sup KEnedy declared in an Action upon the case against Fisher for speaking these words of him he lost his Feet by the Pox Whether a Plea of privilege was to be allowed innuendo the French Pox The Defendant demurred to the Declaration and after imparled and then pleaded a plea of privilege Hales desired the opinion of the Court whether this plea were now allowable because the Books differed about it Roll chief Iustice answered that the plea is not allowable because there is but a privilege claimed by it and the Plea goes not to the jurisdiction of the Court Therefore let the Defendant plead in chief Starkey against Mill. Mich. 1651. Banc. sup Entred Trin. 1651. rot 170. STarkey brought an Action upon the Case against Mill upon two several Assumpsits Arrest of Iudgement in an Action upon an Assumpsit and obtains a Verdict upon both and entire damages are given It was moved in Arrest of Iudgement that one of the promises was not good because there was no consideration to ground it upon and so the damages being intire upon both the Assumpsits one failing judgment cannot be given The case was this The Father gave goods to his Son in consideration that the Son should pay the Plaintif in this action 20 l. It was urged that this can be no consideration for the Plaintif to bring his action because here is no debt due to him but only an appointment for the Son to pay money to him in consideration of the goods given him by his Father But Hales on the other side said that if there may be a debt by any intendment due to the Plaintif Coâ—sideration then the Assumpsit is good and here is a debt due to him therefore the Assumpsit is good Roll chief Iustice held that it is good as it is for there is a plain Contract because the goods were given for the benefit of the Plaintif though the Contract be not between him and the Defendant Case and he may well have an Action upon the Case for here is a promise in Law made to the Plaintif though there be not a promise in fact there is a debt here and the Assumpsit is good Ierman and Aâ—k Iustices agreed but Nicholas doubted But Iudgement was given for the Plaintif Cressit against Burgis Mich. 1651. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for tithes Arrest of Iudgement in Debt upon the Statute of 2 Ed. 6. for tithes Vpon nil debet pleaded and a verdict and damages given for the Plaintif it was moved in Arrest of Iudgement that the damages given are for tithes growing upon 71 Acres of land whereas the Plaintif in his Declaration declares but for tithes growing upon 70 Acres of Land so that the damages are given for more than is declared for and contrary to the demand To this it was answered that this is but the mis-counting of the Iury and is not material Damages because by the whole Declaration it appears there was but 70 Acres and this is but a description by the Iury how the several parcels of land were sown viz. with what Corn. Roll chief Iustice said The Declaration is that the Defendant was seised of 70 Acres of Arable land and that so many Acres were sowed with Wheat so many with Oats so many with Messing so many with Beans and as to the 5 Aeres residue sowed with Barley which all amounts to 71 Acres and it ought to have been as to 4 Acres residue so that this is but a mis-counting of the Iury for the Iury cannot be deceived for the land is called but 70 Acres in the Declaration and no damage ariseth to any by this mistake To which the rest of the Iudges agreed and judgement was given for the Plaintif nisi Mich. 1651 Banc. sup THe Court was moved to reverse an Outlawry for want of Proclamation Motion to reverse an Outlawry Apparence the question was whether it may be done by Attorney the party himself by reason of infirmity of body being not able to come in person Vpon view of the Statute Roll chief Iustice said he must come in person otherwise it cannot be done yet the Court would advise Afterwards it was over-ruled that it could not be reversed except he come in person Drinkwater against Pack Mich. 1651 Banc. sup DRinkwater brought an action upon an Escape against Pack one of the Sherifs of London and obtains a Verdict against him Arrest of Iudgement in an Action for an escape It was moved in Arrest of Iudgement that the Plaintif declares that the party was in the custody of both the Sherifs and yet the Action is brought against but one of them the prisoner that escaped being in Ludgate in the custody of the Defendant Pack Latch answered that the Exception is not good because in Law the prisoner that escaped is in the custody of both the Sherifs Hales on the other side said that it doth not appear upon the Record that he was in the Custostody of both the Sherifs and it shall not be
supplyed by a forein intendment and the party shall be intended to be in custody according to the Custom of London and not by the Common Law Declaration Roll chief Justice held the Declaration good for the prisoner was in custody of both the Sherifs although he was in the Custody of Pack and it stands well enough with the Record and the words ut praefertur do not hurt the averment Averment and the words existent in custodia is a good averment that he was in custody as in an endictment Tunc existens tenementum is good and it is also here found by the Iury that he was in custody for how else could they find for the Plaintif Ierman ad idem But because the two other Iudges had no Books delivered them they would deliver no opinion then Afterward Iudgement was given for the Plaintif Cottrell and his VVife against Theoballs Mich. 1651 Banc. sup COttrell and his Wife brought an Action upon the Case upon an Assumpsit against Theoballs and declared that the Defendant Arrest of judgement in an Action upon an Assumpsit in consideration that the Plaintif would marry A. that is now the Plaintifs wife did assume and promise to the Plaintif to make good a Legacy given unto her by her Fathers Will and would also give unto her 40 l. more out of his own part given unto him by the said Will at her age of 18 years and declares further that thereupon he did marry her and that the Defendant had not performed his promise and so concludes to his damage so much Vpon non assumpsit pleaded and a Verdict for the Plaintif the Defendant moved in Arrest of judgement and took divers Exceptions but the Court insisted but upon one of them and that was held material and it was this That the Wife did here joyn in the Action with her Husband Action which she ought not to do because the promise was made to the Husband only and for his benefit and the sole consideration for the promise doth arise from the Husband namely his marying the Feme And Bafield and Collins his case 22 Car. and Cheesman and Wats case 23 Car. were cited and Roll chief Iustice put this case A promise was made by one to a Feme Covert that if the will procure her Husband to levy a fine of such lands that he would give her a riding suit And it was adjudged that the Baron and Feme cannot joyn in an action for breach of this promise and he said that in the case at Bar it was a meer covenant and no duty grew thereby to the Feme Case Postea Goodyer against Shaw Mich. 1651. Banc. sup Mich. 1650. rot 633. GOodyer brought an Action of Trespass for an Assault and Battery Demurrer to a plea in an Action of Trespass and wounding of his Servant and taking away 12 plate locks against Shaw The Defendant Shaw pleaded not culpable to the Assault and Battery and wounding and as to the taking away of the locks he pleaded a special plea of Justification by vertue of Letters Patents of incorporation granted to the Lock-smiths of Durham by Cutbert Bishop of Durham who had jura regaliâ— within the County Palatine of Durham and that by vertue of this Charter the locks being not good he as Warden of the Company did take them To this Plea the Plaintif demurred and for cause it was shewed that it appears not by the Plea that the Black-smiths are a Corporation created by the Bishop but only that the Customs used amongst them in Order to the regulating of their Trade were confirmed by the Bishop which doth not make them a Corporation Plow f. 199. Long quint. f. 40 41. 2ly It doth not appear by the Charter that they have any authority to take away ill made locks and therefore judgement was prayed for the Plaintif Roll chief Iustice said That here doth not appear any Order made by the Corporation to take away the Locks Corporation and therefore it was done without warrant though the Corporation had such a power But besides it will be very hard to maintain the Lock-smiths to be a Corporation because the Bishop confirmed their Orders Therefore let the Plaintif have his judgement nisi Bishop against Fitzherbert Mich. 1651. Banc. sup BIshop brought an Action upon the Case against Fitzherbert Arrest of Iudgement in an Action for words for speaking these words of him thou art a Theef and hast stollen Horses Vpon not guilty pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that as the words are laid in the Declaration they are not Aâ—ionable for it is incertain of whom they were spoken The Declaration was thus That the Defendant Colloquium habens cum querente in the presence of others dixit meaning the Plaintif Thou art a Theef and hast stollen Horses The Court at thâ— first moving of this Case enclined the words were actionable because it shall be intended they were spoken of the Plaintif though it be not directly said so And afterward it being moved again the Court held the words well enough laid to bear an Action because upon the whole Record the words plainly appear to be spoken of the Plaintif and therefore Iudgement was given for him Freeman against Childeress Mich. 1651. Banc. sup Entred Trin. 1651. rot 45. FReeman brought an Action upon the Case against Childeress for speaking these words of her She is a Whore and I will prove her a Whore Arrest of Iudgement in an Action for words and an arrant Whore Upon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and spoken in passion the judgement at the first moving of it was stayed yet it was then doubted whether the words did not import more in them than to say barely of a woman she is a whore But afterwards it being again moved Roll chief Iustice said that the words were too generally spoken to be actionable and that they are but words of passion and that before the Act made against Adultery prohibitions have been granted to the Prerogative Court for libelling against persons for calling of women whores Prohibitions and therefore Nil capiat per Billam nisi Preston against Mortlock Mich. 1651. Banc. sup AN Action of Trespass was brought against 4 Defendants and before a Verdict one of them dyed and the Verdict was found against the Defendant Iudgement Twisden prayed the Plaintif might have judgement against the other three Roll chief Iustice answered If you will relinquish your damages as to the person that is dead you may have judgement against the rest Davis against the Lord Foliot Mich. 1651. Banc. sup THe Court was moved to grant the good behaviour against the L. Foliot Motion for the good behaviour because he was endicted for a foul Battery at the Sessions
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
one as if the party had appeared for if he had appeared the Case would have béen otherwise So Iudgement was given for the Plaintif nisi c. Pasch 1652. Banc. sup MEmorandum One brought by Habeas Corpus from the Fleet remaâ—â—ed One was brought into the Court by the Mareschall of the Fléet by vertue of a habeas Corpus directed to him out of this Court and because it did appear upon Record that the party was charged with divers debts when he was turned over to the Fleet he was not suffered to put in Bail here but was remanded Gossage against Tayler Pasch 1652. Banc. sup Hill 1650. rot 117. IN an Ejectione firmae upon a Lease for years of a Messuage Special verdict in Trespass and Ejectrueâ—â— and certain lands in Hatfield Broad-Oak in the County of Essex upon a special verdict found the case fell out to be this Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question upon the mariage of his Son Leventhorp Frank with Susan Cotele levies a fine of the lands to the use of himself during his own life and the life of Leventhorp his Son and after during the life of Susanna Cotele the wife of Leventhorp the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband The question here was whether the word heirs shall be intended the heirs of Leventhorp and Susanna his wife or whether the estate shall be intended to be limited to the heirs of Susanna only and that Leventhorp shall have barely an estate for life in the lands Serjeant Glyn of Councel with the Plaintif held That Susanna Cotele hath an estate tayl executed in the lands and that the word heirs shall relate only to the heirs of Susanna and not to the heirs of Leventhorp 1. Because that here is an estate limited for life unto Susanna by an express limitation and her heirs shall take immediately after the estate for life ended and they shall not come in as purchasors By express Terms the word heirs is not limited to any person but it is left to the construction of the Law and that doth apply it to Susanna as to a person to whom Richard that setled the lands hath expressed most affection as appears by the Deed Lit. f. 6. Sect. 28. There is an expression of the party to whom the word heirs shall relate but so is not here and therefore the cases differ In 3 Ed. 3. f. 31 32. It is ruled that both parties have an estate tayl because the estate is limited to both but so it is not in our case so those books are not against me In our case it doth not appear that Richard did intend to advance the Husband of Susanna and therefore it is not reason that the word heirs should relate to him but to Susanna his wife only for in case of limitation of estates the intention of the party is to be considered and doth direct the matter and the preceding limiting of the estate to Susanna and not to Leventhorp doth shew that the party did mean to promote the heirs of Susanna Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed which in the limitation of it doth encline more that the word heirs should be applyed to Susanna than to Leventhorp for the words upon her is as much as to say of her and then it is the same case with Littletons case 3ly The Intention of the Donor appears to be such by the circumstances of the entire limitations which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue and therefore the word heirs are to be applyed to Susanna and not to Leventhorp for if it should be applyed to both then Leventhorp might destroy the estate of the issue contrary to the Donors intent And whereas Dyer 99 is objected against me I answer that case is not against me for there the word heirs is expresly limited to a certain person viz. to the heirs of the body of both of them but so it is not in our case and whereas Hill 13 Iac. Lane and Panels case in this Court is also objected against me I answer that that case is in effect the same case with Dyer and the question in our case came not in dispute And the will of the Donor in deeds is to be ohserved Lit. 22. C. Tayl. 1. rep Shelleys case 103. 〈◊〉 Notwithstanding in gifts in tayl this rule holds not so that a gift in tayl may be limsted contrary to the rule of the Common Law And I know not of any authority in print or writing against me but in 13 Ed. 3. Fitz. tit variance 81 there is an expresse authority for me and 4 H. 4. Fitz. br 448. in my experience I have known many estates limited as this is in the Southern parts held good estates tayl if it should be otherwise many estates would be shaken Roll chief Iustice We have delivered our opinions before against you viz. that it was not the meaning of the donour to apply the word Heirs to the body of Susanna only for this construction would offer violence unto the words as appears by Littleton who interprets that they are to be applyed to the Heirs of both the partyes and your reason is founded upon a wrong ground and expresly against Litletons case and for your second reason it is of no waight for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife 3ly We are not to frame a meaning against plain words which shew the Donors intent to be against you And the Baron cannot Bar the Estate tayl as you suppose Tayl. for the Feme hath an Estate for life and if she survive she may revive the remaining Estate and we must not consider of inconveniences which possibly may happen against the expresse words of the deed and the multitude of conveyances made in this manner are of no force to alter the Law Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes because voluntas donatoris secundum formam chartae expressa est observanda Nicholas and Ask Iustices of the same opinion Garland against Yarrow Pasc 1652. Banc. sup THis case being in arrest of Iudgement formerly spoken unto in an Action upon the case for these words Arrest of Iudgement in an Act on for words you are a knave and keep a Bawdy house was again moved by Christ Turner who held that the words are not actionable 1. Because they are of spiritual cognisance 2ly It is not said that he kept a common Bawdy house 3ly here is no special damage laid 10 Car. These words he is a pimp adjudged not actionable in Lewis and Whittons case 4ly It is not alleged that he
the jurisdiction of this Court which cannot be and we are not now to examine the jurisdiction but the pleading Therefore shew cause Monday next why you shall not plead in Chief Griffith against Thomas Trin. 1652. Banc sup Mich. 1651. rot 340. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Debt upon an Obligation to stand to an Award Error to reverse a judgement in deb in the C. B. and the Errors assigned were 1. That whereas the Award was to pay a certain sum of money at or before the 25 day of December the breach assigned is that he paid it not at the 25 day 2ly Whereas there are 2 parties of one side and one on the other side that submitted to the Award The Award is that one party shall not prosecute the other 3ly The Condition is that the Award shall be made the 20 day of such a month and it is set forth that the Award was made before the 20 day and doth not say what day it was made But the Councel relyed upon the 1 Exception And to that Latch on the other side answered Award That if it be paid before the 25 day it is then payed at the 25 day 2ly The Condition requires the award to be made under their hands the subsequent averment is to no purpose And as to the 3. the words Alter partium extends to all parties and besides the breach is not assigned upon that Roll chief Iustice If it be paid before the day it is paid at the day and so that is certain enough 9 H. 7. Another exception was taken that the condition was that the Arbitrement should be put in writing by the Arbitrators and it is not so here expressed but only generally that it was put in writing Roll chief Iust It is not to be necessarily understood that it must be put in writing by the Arbitrators themselves Another Exception was taken that here is an Outlawry after judgement there is a fault in the Outlawry for in the Writ to the Sherif it is praecipipimus vobis instead of praecipimus vobis the year of our Lord is in Figures And 2ly it is secundum consuetudinem regni Angliae whereas it was in the time of the Kéepers of the Liberty of England Roll chief Iustice If the word be praecipipimus then there is no command to the Sherif for that word signifies nothing Therefore let the Outlawry be reversed and judgement affirmed Trin. 1652. Banc. sup IN an Action upon the Case the Plaintif declared Demurrer to an evidence that in such a High-way the Defendant digged a hole and that by reason of that hole as he was travelling in the way with his Gelding his Gelding did fall and hurt himself to his damage c. Vpon not guilty pleaded and issue joyned at the Tryal this evidence was given to the jury namely That the Plaintifs Servant was driving his Masters Gelding in the way being loaden with Lead and that by reason of the hole he fell c. To this evidence it was demurred and for cause it was shewed That by the evidence it neither is proved that there was such a way nor what person digged the hole both which are part of the issue to be tryed and so the evidence proves it not and therefore is not good to find the Verdict for the Plaintif as the Iury have done Roll chief Iustice This evidence is no more than a special Verdict and it ought to find the way and the hole digged and all the matter conducing to the issue and therefore it is not good as it is Verdict Venire Therefore let the Verdict be quashed and a new Venire awarded Heard against Read Trin. 1652. Banc. sup IN an Action upon the Case for words the Case was this Arrest of judgement in an Action for words the Defendant being brought before a Iustice of Peace to answer a crime objected against him the Plaintif appeared as a witness to testiffe against him whereupon the Defendant to weaken his Testimony did speak these words of the Plaintif before the Iustice of Peace Thou hast been a contentious man this 30 years and a Breeder of strife and hast taken a false Oath against my Brother and Sister in a matter of incontinency and hast taken 20 s. for it and I will shew it upon Record Vpon not guilty pleaded and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the words were not actionable because it is not said that he is perjured in any Court of Record but that he will shew if upon Record And 15 Car. Morton and Clapams case was cited but on the other side it was said that take all the words together they are actionable and Trin. 22 Car. Osborn and Brookes case was cited Roll chief Iustice The words are said to be spoken falso malitiose and it is not said in the Record that the party spoke them in his own defence and it may be they were spoken by the by and not in the judicial proceedings but it appeared upon reading of the Record Case that they were spoken to disable the Plaintifs testimony Whereupon Roll chief Iustice said That the Action did as well lie in this case as it doth lie for endicting one falso et malitiose for Endictments are more avoured in the Law than private matters between parties Therefore let the Plaintif have his Iudgement nisi Custodes against Howell Gwinn Trin. 1652. Banc. sup HOwell Gwinn was endicted of perjury Arrest of Iudgement in an Endictment for perjury for taking of a false Oath in an Affidavit made before a Master of the Chancery and was found guilty It was moved in Arrest of Iudgement 1. That it doth not appear by the Record that the Oath made was any thing material to the sute depending in that Court and so it is but an extrajudicial Oath and is not perjury either by the Common Law or by the Statute 2ly It doth not appear that the party took a false Oath for it appears not whether the Master of the Chancery had any power to take this Oath and if he had not then it cannot be perjury Latch enforced the 2 Exception and said That a Master of the Chancery hath not power ex Officio to take an Oath and therefore the party ought to shew that he had power to take this Oath but if he hath power he ought not to take it upon the holy Evangelists as it is here expressed but it ought to be upon the holy Evangely for the form is super sacro sancto Evangelio and not Evangelistis Maynard on the other side prayed judgement and that the party may be fined and answered that it doth well appear that the Oath was made touching the cause in question and the Endictment is here laid at the Common Law and not upon the Statute Next it is not necessary to
It is considerable in regard it is an office of trust whether it may be leased out although he may make a Deputy Therefore argue it again the next Term. Baker and Andrews Mich. 1652. Banc. sup Trin. 1650. rot 1469. BAker brought an Action of Trespass quare vi armis clausum fregit Demurrer to a replication in Trespasse vi et armis and for taking his Cattel the Defendant as to the force and arms pleads non cul and as to the rest he justifies that the Cattel went in through the defect of the Plaintiffs inclosures the Plaintiff replyes that the Cattel came in through another mans fence into his ground to this replication the Defendant demurs 〈◊〉 shews for cause that the Plaintif doth not assign where the place of the other Close lyes through which the Cattel came through Yard said it is not necessary to shew where it lyes for they went not in where the Defendant hath alleged so the traverse is well taken Wadham VVindham on the other side answered here is a new assignment and he answers not the Trespass for which the Action is brought and because it is a new assignment we must give a new answer and therefore you must shew the place where your new assignment lyes Roll chief Iustice He pleads no more but that the Cattel came in at another place than is pleaded and he needs not shew the place But here the Defendants plea is not good Plea for he pleads a prescription where it ought to be a custom that the occupyers of the land ought to make the sences and he ought not so prescribe in the person Iudgement for the Plaintiff nisi Mich. 1652. Banc. sup BY Roll chief Iustice Who may take advantage of a fault in a Plea Advantage If there be a fault in a plea in matter of form and after there is a fault also in the replication and the Defendant demurs to it but shews no cause of demurrer he shall take no advantage of this fault in the replication but he who joyns in the demurrer shall take advantage of the ill plea and so was it adjudged Pasc 1. Car. in this Court in Prat and Thimblethorps â—ase and he said that all faults in pleading are incurable at the Common Law and therefore those that are not helped by Statutes are left as they were at the Common Law Mich. 1652. Banc. sup ONe was made Constable by order of a quarter Sessions but the party refused to serve Motion to quash aâ— order of Sessions and removed the order hither by Certiorari moved to quash the order but the Court would not do it although ther were material exceptions taken against it but ordered him to plead because they perceived the party was stubborn and they would not give encouragement to such persons Heath and Vdall Mich. 1652. Banc. sup HEath a Caryer brought an Action of the Case against Vdall Arrest of Iudgement in an Action upon the case and declares among other things for plundering of him of viginti fardellas Anglice packs and in arrest of Iudgement it was moved that the words vinginti fardellas Anglice packs is uncertain But Maynard argued that it might be good because the Caryer could not declare otherwayes for he could not know what was in the packs and he cited one Bedingfields case Trin. 10. Car. Declaration where an Action was brought for a library of books and for apparell and adjudged good But Roll chief Iustice said it could not be good for the apparel Wadham Windham on the other side held the words uncertain as they are and said he ought to have shewed that they were packs with goods or have shewen what was in them for a pack is but a measure of a thing Roll chief Iustice answered if it be but a measure of a thing then no damages are given for them and then the Action is good for the rest But we will advise Afterwards in the same Term Maynard moved for the opinion of the Court and thereupon the Court held that the words are incertain as they are for he ought to have expressed what was in the packs and ruled a nil capiat per billam to be entred Levingston and Crompton Mich. 1652. Banc. sup LEvingston brought an Action in this Court against Crompton Exceptions to a plea of privilege The Defendant pleads that he is a Clark of the Chancery and that all Clarks of the Chancery ought to be sued in the Chancery only and not elsewhere and demands judgement if he ought to make any other answer in this Court Two Exceptions were taken to the plea 1. He saith That all Clarks of the Chancery have used to be sued in the Chancery and not elsewhere and doth not say nor any of them have been used to be sued elsewhere and though all of them have not been used to be sued elsewhere yet that hinders not but that some of them have been sued elsewhere 2ly He pleads that he is a Clark of the Chancery and ought to be impleaded in the Chancery held at Westminster before the Keepers of the liberty of England c. time out of mind which is not true Hales answered That this Court ought to take notice of the privilege of Chancery Notice Privilege although it be not well pleaded But Roll chief Iustice denied that they ought to do it and said That it is the Custom for the Clarks of the Exchequer when they plead their privilege to bring the red book wherein their privileges are written into the Court and upon sight of their privilege there written it is used to be allowed but it is not so of the privileges of the other Courts but they must be pleaded and so here And because it is not well pleaded here therefore shew cause why you should not plead in chief Pitton and Rey. Mich. 1652. Banc. sup PItton appeared to an Action brought against him at the sute of Rey Motion for the Plaintif to declare speedily but no declaration was put in against him Vpon an Affidavit that the Defendant was a Merchant speedily to go to Sea It was moved for him that the Plaintif might forthwith declare against him that thereby he might direct his Attorney what to plead and might have his liberty to be gone Roll chief Iustice By the course of the Court he hath thrée terms liberty to declare but this is an extraordinary Case Therefore let him declare Thursday next otherwise he shall not declare till he come back Nota. Mich. 1652. BY Roll chief Iustice A private Sessions of the Peace is not said to be held for the County Staples Case Mich. 1652. Banc. sup A Rule was read on the Capital side for Staples a Iustice of Peace of Sussex Cause why no Attachment against a Iustice of Peace to shew cause why an Attachment should not be granted against him for procéeding upon an Endictment of forcible entry and
goods were and so the Declaration is incertain But Roll chief Iustice answered that the Declaration is good enough especially now there being a verdict in the case Pasch 1653. Banc. sup BY Roll chief Iustice Where a Certiorari may not be granted Affidavit Surmise A Certiorari to remove a Record ought not to be made but to a known Officer who is known to have the custody of Records and upon a surmise that he hath such a Record in his hand and therefore We will not upon an Affidavit grant a Certiorari but upon a surmise made upon the Roll. Pasch 1653. Banc. sup COunt Arundeland my Lord Chandois Bail denâ—ed for Maâ—slaughter to whom Count Arundel was second in a duel being formerly endicted at Surrey Assizes before Iustice Ask Iustice Warburton for killing Mr. Hen. Compton found guilty only of Manslaughter by the grand Inquest were brought to Bar to be arraigned for it and were not admitted to be bailed but were delivered over to the Marshal to be brought again at another day Nota. Pasch 1653. Banc. sup IOhn Weeks who had been endicted and convicted upon the Statute of King Iames made against stabbing Pardon allowed being formerly brought to this Bar did plead the general pardon which he had sued forth and prayed it might be allowed But then the Court said they knew not whether he were excepted out of the general pardon or not and ordered him to enter his averment upon the Roll that he is not excepted Surmise entred and then to appear again at another day at which time he was brought again and then he declared he had entred his Averment and produced his pardon and prayed it might be allowed which after a grave admonition made to him by Mr. Iustice Ierman exhorting him to repentance and amendment of life was done Harris and Tooker Pasch 1653. Banc. sup HArris brought an Action upon the Case against Tooker for turning of an old Water-course from his Mill to a Mill which the Defendant had lately erected and obtains a Verdict Arrest of Iudgement in an Action upon the Case The Defendant moves in Arrest of Iudgement 1. Because it appears not by the Declaration what estate the Plaintif hath in the Mill for he only says that he hath been seised of it 2ly It is not shewed from whence the water runs as it should be 3ly The erecting of the new Mill is not actionable but the diverting of the water to his damage and therefore ought not to be jumbled together Case Roll chief Iustice It is a damage to turn the water out of its antient course and it is not needfull to say that there is a new Mill erected But what say you to the first Exception viz. That you have not shewed what estate you have in the Mill. Wild answered they had shewed it Roll chief Iustice Be it so or not the Action lies for what estate soever he hath an Action of the Case will lie therefore take your Iudgement Pasch 1653. Banc. sup MEmorandum Arraignment for Manslaughter This day by Rule of Court my Lord Chandois and Count Arundel were again brought to the Bar and arraigned for Manslaughter Chandois as Principal and Arundel as accessary for killing Mr. Henry Compton in a duel They confessed the fact and craved their Clergy and Peerage by the Statute of 1 Ed. 6. But because the Court doubted whether the Statute was repealed or not Clergy and in regard the prisoners were not willing to lie longer in prison the Court refusing to bail them because the fact was notorious they waived their Peerage and prayed their Clergy as Commoners of England Whereupon the Ordinary was called who appeared and brought his Book which was a fair Latine Psalter The Court called for the Book and seeing it to be Latin commanded him to bring an English Book which he did But because the Officer was not provided who should have burned the Prisoners in the hand the Court would not then hear them read though the prisoners urged it But they were ordered to be still in Custody till another day and then to be brought again Trin. 1653. Banc. sup TWisden moved for a reference to Hern the Secondary and put the case to be this Motion for a reference to the Secondary A Scire facias issued forth against Executors and the Sherif returns nulla bona After upon a supposal by a testatum that the Executors had wasted the goods a new scire facias with a fieri facias in the same writ issued out according to the new way used and upon 2 nichils returned a judgement was given against them de bonis propriis and the parties were never summoned or had any notice of the proceedings Audita querela Reference Roll chief Iustice If you be condemned upon 2 nichils returned whereas you were never summoned you may help your selves by an Audita querela But it is not to be helped upon a reference Trin. 1653. Banc. sup A Man brought an Action of the case against one for causing him to be endicted for stealing of a Mare Arrest of Iudgement in an Action upon the Case and hath a verdict against the Defendant It was moved in Arrest of judgement that upon preferring of the Bill to the grand Iury they found an Ignoramus and so there is a repugnancy in the Declaration which sets forth that the Plaintif caused him to be endicted and yet says that an Ignoramus was found so that upon the matter it was found no Endictment Wild on the other side said the Declaration is well enough and there is no repugnancy for the words shall be taken according to the common construction Hales There is another Exception viz. That all the proceedings mentioned in the Declaration are expressed to be before the Iudges as Commissioners for the Gaol delivery and not as Commissioners of Oyer and Terminer Roll chief Iustice We will intend that the Endictment was before them as Iustices of Oyer and Terminer Endictment and in truth it is not material before what authority he was endicted and in this case the trouble the party is put unto by reason of this endictment is the cause of his bringing this Action and not his Tryal upon it Cure and therefore the authority is not material nor is it material whether the endictment be good or no and the words here are to be construed according to common intendment viz. That he was endicted though the endictment was not found but an Ignoramus and so by consequence in Law it is no Endictment upon which he could be tryed to come in danger of his life Hales moved that they might amend the Declaration and go to a new Tryal Roll chief Iustice It would be good to do so Amendment for it is doubtfull how we shall take the matter as it stands before us upon the Record Trin. 1653. Banc. sup THe Court was moved for an
Attorney of the Common Pleas that was sued in this Court to allow his writ of privilege Motion to allow an Attorneys privilege of the common pleas But Roll chief Iustice bid him plead his privilege for we cannot allow it upon a motion and his shewing of his writ of privilege Whitehead and Buckland Trin. 1653. Banc. sup Hill 1652. rot 121. VVHitehead brought his Action of Trespass against Buckland for taking of his Cattel Demurrer to a replication in Trespass for taking Cattel The Defendant pleads the Stat. of limitations of Actions in Bar the Plaintif replyed that he sued forth an Original within the time limited in the Statute To this replication the Defendant demurs and shews for cause 1. That he saith he hath sued out his Original but doth not say prout pater per Recordum as he ought to do 2ly He doth not plead the continuances upon the Roll Maynard answered that the pleading is good and we cannot take a traverse upon their plea which is surplusage nor is it necessary for us to shew in our plea all the continuances but to plead so much of the Record only as goes in Bar. Plea Roll chief Iustice The plea is plain and it is not necessary to allege the continuances for here is an apparance Postea Sale and Wray Trin. 1653. Banc. sup VVIld moved the Court that the Defendant in an Action of Covenant might be ruled to swear his plea Motion that the Defendant might swea◠his plea. because it is a forein and dilatory plea pleaded to out this Court of its Iurisdiction and to hinder a Tryal for he pleads that he was at Lisbon in Portugal at the day of the payment of the money which he had covenanted to pay Roll chief Iustice you may reply that he was in England Replication and you need not traverse absque hoc that he was in Portugal But the question is whether the plea be forein Traverse and I am of opinion that it is forein and ought to be sworn Howell answered it is not forein for it may be tryed in the County where the Action is brought Plea Roll chief Iustice Let him swear his plea except better matter be shewn Kitchinman Trin. 1653. Banc. sup VPon a Verdict given for the Plaintif in an action of the Case brought for preferring a Bill of Endictment of felony against him Arrest of judgement in an Action upon the case It was moved in Arrest of Iudgement that it was not laid in the Declaration to be done falsly but that the Attorney of the Plaintif hath interlined the word falsly in the Postea 2ly It is not said that the Endictment preferred was delivered to the grand Iury but to the Court. Roll chief Iustice It is said to be preferred malitiose Endictment and it cannot be malitiose except it be also falsly and here is falsly expressed in the beginning of the Record and it is not necessary to say so through the whole Record for the words subsequent are coupled to the precedent And a Bill of Endictment is to be delivered to the Court and the grand Iury receives it from thence Iohnson Launcelot took another Exception viz. That there is a variance between the Venire and the Distringas for in the Venire one of the Iury is called Cargenter Variance and in the Distringas Carpenter Roll chief Iustice Let it be stayed for this fault And let Williams the Sollicitor be committed for enterlining the Postea Commitment But upon a voluntary confession of the fact and submission the Sollicitor was released and only ordered to pay the charge for the motions in the Cause Amendment and the Postea was ordered to be amended by the Paper book Custodes and Troos. Trin. 1653. Banc. sup THe Court was moved to stay Iudgement in an Endictment of perjury found against one for perjury in an evidence given by him in an Action of Trover and Conversion Motion to stay judgement in perjury The Exception taken was that the Oath is not averred to be made concerning the matter in issue in the action so it cannot be such perjury for which an Endictment lies Roll chief Iustice Is the Endictment grounded upon the Statute or is it an Endictment at the Common Law The Councel answered It is an Endictment framed upon the Statute Roll chief Iustice Then it is a material exception but if it had been an Endictment at the Common Law it would have been otherwise for at the Common Law one may be endicted for a false Oath in an Affidavit Endictment Perjury False Oath Therefore let Iudgement stay till the Plaintif move Custodes and Martin and Long Trin. 1653. Banc. sup THe Court was moved to quash two Endictments against Martin and Long Motion to quash two Endictment as Lords of the Manor of Clarkenwell for not repairing the Stocks and Whipping Post and not making of a Pound The Exception was Endictments Stocks Whipping Post that the making the Pound was not a publique thing and therefore an Endictment lies not for not doing it Roll chief Iustice That is true And he took another Exception That the Endictment doth not shew that Martin and Long are Lords of the Leet And if they be but Lords of the Manor and not Lords of the Léet they are not bound of common right to repair the Stocks and Whipping Post and therefore the Endictment must shew how they are bound to do it viz. either as Lords of the Leet or otherwise or else the Parish is bound to do it Custodes and Rickabye Mich. c. 1652. Banc. sup VPon an old rule of this Court made in the beginning of King Charls Arguments and Iudgement whether a pardon for murther was well pleaded The Court was moved to deliver their opinion in the Case of Rickaby that had been endicted for murther and had obtained his pardon whether the pardon was good and to be allowed or that he should be tryed notwithstanding his pardon Roll chief Iustice answered This Case was argued often at the Bar 8 Caroli which was long agoe and before our times therefore let us have books and argue it again for we have yet heard no Arguments in the Case At another day by rule of Court the Case was again moved and argued by Wadham Windham for the Keepers that the pardon was not good nor ought to be allowed because by the pardon murther was not pardoned and in his argument he made these questions viz. 1. Whether the King could pardon murther by the Common Law 2. Whether he might do it by the Law of God 3. Whether he might do it by the Statute 4. Whether the pardon be made good by the non obstante included in it For the first the King ex Officio may pardon Man-slaughter by the Common Law and in some cases he might pardon murther viz. Where there is but only malice implyed in the Murtherer but
have judgement though the Bar was not good Rawley and Vivers Trin. 1653. Banc. sup A Writ of Error was brought upon a judgement given in an Action of Trespass quare clausum fregit c. The Error assigned was Error to reverse a judgement in Trespass quare clausum fregit Value that the Plaintif did declare quare clausum fregit and for pulling down of his house but doth not shew the value of his house Roll chief Iustice It is not necessary the Action being a real action Affirmetur nisi Bariar and Windham Trin. 1653. Banc. sup IT was held by the Court that the Engagement taken before 2 Iustices of Peace in Ireland is well taken What engagement is well taken and that the Engagement ought not to be pleaded to an Alien born and subject to any forein Prince in amity with England because he is under another obedience and thereupon the Engagement pleaded to such an one was discharged in the Case of one Bariar and Windham Trin. 1653. Banc. sup ONe who was a witnesse in the cause for the Defendant being bail for him upon motion to the Court was taken off from the file Who may not be bail and another bail taken in his room in Court upon examination of his sufficiency Nota. Trin. 1653. Banc. sup THe Court was moved to dispauper the Plaintif in an Action of Trespass and Ejectment Motion to dispauper the Plaintif for that it was proved by Affidavit that he was a very vexatious person for he had béen thrice nonsute in this Action would never pay costs or make a sufficient Lessee able to pay them and had also sealed a general release to the Defendant Roll chief Iustice Let him be dispaupered and let him put in an able Lessee to pay the costs or otherwise he shall not proceed in his Action Trin. 1653. Banc. sup BY Roll chief Iustice Laws of England and Ireland all one Error The Laws of Ireland are all one with the Laws of England and a writ of Error lies in England to reverse a judgement given in Ireland Trin. 1653. Banc. sup A Declaration was filed in the Ofice against one in custody of the Mareschal What is not good notice to a prisoner of a declaration against him Iudgement discharged and a Copy of it was left with the Clark of the prison but the prisoner had no notice of it Vpon the prisoners shewing of this matter to the Court and reading an Affidavit to prove it a judgement by a nihil dicit obtained against him was discharged and ordered that the Plaintif should accept of a plea. Trin. 1653. Banc. sup THe Court was moved to discharge a prisoner out of the Vpper Bench that had lain there ever since 14 Caroli To discharge a prisoner that had long lain in prison upon a judgement obtained against him in an Action of Debt where only common bail was filed and because no execution was ever taken out upon that judgement and the Plaintif in the Action was now dead Roll chief Iustice Let him be discharged nisi causa shewed to morrow Nota. Trin. 1653. Banc. sup BY Roll chief Iustice Matter of Record not alterable without motion to the Court. A matter entred upon Record cannot be altered without a motion made and the Consent of the Court first obtained though the Attorneys on both sides consent to it Trin. 1653. Banc sup THe Court was moved to quash an Order of Sessions for one to pay 3.5 a week to keep a Bastard Child To quash an Order of Sessions Roll chief Iustice Let it be quashed for they can make no such Order for the party may keep the Child himself if he will and then he need pay no money to keep it Trin. 1653. Banc. sup BY Roll chief Iustice When the Venue may not be changed The Venue cannot be changed after a Plea pleaded in abatement of the writ much lesse after a plea pleaded in Bar. Q. Fanshaw and Bond. Mich. 1953. Banc. sup IN this Case it was said That if a Copyholder refuse to pay a reasonable fine or to be admitted to the Copyhold How a Copy-hold is forfeited This is a forfeiture of his estate Dekin and Turner Mich. 1653. Banc. sup VPon a motion in Arrest of Iudgement in an Action upon the Case for these words Thou art a whore and I will prove it Arrest of judgement in an Action for words It was said by Roll chief Iustice That the words are not actionable although spoken since the Act made against Adultery because they are but words of heat and choler but if a special damage be laid by the speaking of them as per quod maritagium amisit or the like there they are actionable Price and Goodrick Mich. 1653. Banc. sup IN this Case it was said by Roll chief Iustice Where an Audita querela lies If there be a Iudgement against three and one of them is taken in Execution and be afterwards set at large by the Plaintifs consent if any of the other two be afterwards taken in execution upon the same Iudgement he may have an Audita querela Motion but he cannot be relieved upon a motion in Court though grounded upon an Affidavit Newton and Osborn Mich. 1653. Banc. sup NEwton brought an Action of Covenant against Osborn an Executor to a Lessee for years for non-payment of rent reserved upon the lease upon the general words yielding and paying in the lease Whether an action of Covenant did Fe or not against an Executor there being no express Covenant therein for the payment of the rent The question was whether this Action did lie against the Executor Latch argued that it did not lie because it is a meer Covenant in Law comprised only in the words yielding and paying and not an express Covenant and so only binds the Testator but not the Executor But Roll chief Iustice answered That an Action of Covenant doth lie against an Executor upon a Covenant in Law Covenant Executor although he be not named but it is otherwise of an heir for he is not bound by such a Covenant And the reservation of the rent here doth seem to be an express Covenant for it is the agreement of both parties viz. of the Lessor and Lessee Iudicium nisi Benskin and Herick Mich. 1653. Banc. sup BEnskin brought an Action of Debt upon an Obligation against Herick A Plaintiff lost his mony by joyning false issue a Verdict against him The Defendant pleads that he tendred the mony due upon the Obligation at the day and place of payment and that the Plaintiff refused to receive it Vpon this the mony was brought into Court by rule upon the Defendants motion the Plaintiff joyns issue that there was no tender and refusal and upon this a Tryal was had and a verdict found for the Defendant that he did make tender and that the Plaintiff did refuse to receive the
where it is and by the construction that we make of the Proviso all the Will may stand together but by another construction it cannot Elizabeth shall have a special entayl with her Husband by the last clause and yet the general Estate tayl given in the former part shall stand and we are in the interpretation of Wills to consider circumstances and conjectures and there are two publications found in this will although this doth not appear upon Record and so comes not in judgement Roll chief Iustice We are all of one opinion that judgement ought to be given for the Defendant If the first clause in the Will continue uncontrolled by the Proviso it is for the Defendant but if it continue not uncontrolled it is for the Plaintif and we hold that the first clause is not controlled for we ought not to make any part of a Will void if all the parts of it may stand together and this cannot be here if the Proviso should controll the former part Revocation and to make it repugnant but if the Proviso could stand with the former part of the Will it might revoke the former part and if this Proviso had been made after the Will it might have altered the Case but that appears not And we must collect the Testators meaning by the Will Intention and by the Will it cannot be understood that the Proviso should be void and the common reputation of Mill and Mills to be the same name shall not make Mill to be the Testators true Sirname and the Testator intended his Daughter should marry one of his own true Sirname and not one of his reputative name for this is a special case and goes not according to the ordinary rules of names that sound alike and it cannot be intended that the Testator did mean to destroy one part of his will by another part A general clause in a grant shall not extend to a particular thing provided for in the grant much less shall it do so in a Will Therefore let judgement be for the Defendant nisi Mich. 1652 Banc. sup AN Action of the Case was brought by one that kept a Victualling house Arrest of Iudgement in an Action for words for speaking these words of her There was a man killed in her house and she concealed the murther Vpon a rule to stay judgement till the Plaintif should move Wild moved for judgement because he held the words to be actionable in that they amount to a scandal of the Plaintif as well as they tend to cause her to be fined and imprisoned Roll chief Iustice Fine Imprisonment She shall not be fined and imprisoned except she receive and comfort the party that killed him but the words are scandalous and the Case differs from the Cases put on the other side Twisden for the Defendant urged that it was not averred that the Plaintif did know of the murther Roll chief Iustice The words imply she knew of the murther for how else could she be said to conceal it Bowlstrode for the Defendant said That it doth not appear by the Record that any man was killed in the house nor any time when nor is it said the Defendant spoke the words of the Plaintif Case but only by an innuendo Roll chief Iustice The words are actionable to say that thou hast murthered a man without averring that he is killed but if it appear by the Declaration that the man was alive after the words spoken it is otherwise And here if no man be murthered the feigning of a false thing makes the words the more actionable by saying she concealed a murther where there was in truth no murther done But the greatest doubt here is whether because admitting a murther were done the Plaintif is to be but fined and imprisoned for the concealing it the words can be actionable And I hold they are actionable notwithstanding because they are scandalous Endictment Declaration and he said that in an Endictment a thing must be expressed to be done false et malitiose because that is the usual form but in a Declaration those words are not necessary Therefore let the Plaintif have his Iudgement nisi Mich. 1653 Banc. sup IT was held by the Court that a Constable cannot be sued out of the County where he is Constable for a thing done by him in execution of his Office A Constable not to be sued out of his County but for other matters he may Elston and Drake Mich. 1653. Banc. sup ELston brought an Action of Debt for rent due upon a lease for years Error to reverse a judgement in debt for rent as being Administrator to I. S. and declares for rent due since the death of the Intestate and hath a verdict and a judgement in the Common Pleas. Drake brings his writ of Error here to reverse this judgement The Exception taken was that it doth not appear by the Declaration whether this rent sued for doth belong to the Administrator or not for he makes himself no title to it and for ought doth appear it may belong to the heir and not to him Wadham Windham on the other side This is no Exception now after a Verdict but if it had been upon a Demurrer it would have been good and we do not declare that the Intestate was seised in see who made the lease and so it may well be understood that he had but a lease of this land did let an under lease to the Defendant and the better construction shall be made for us Hales on the same side said non detinet is pleaded and the Iury hath sound detinet which would be impossible if the Intestate had been seised in fee and there is a double intendment that the rent is reserved upon a lease for it is reserved to Executors and not the heir Maynard on the other side said the Verdict helps nothing because the Declaration is naught in substance in our case for the Plaintif therein hath made himself no title to the rent and all that is in the Declaration to intitle him is expressed but by way of inference or conclusion and for the reserving the rent to the Executors this had been good if the rent had grown due during the time of the Intestate The Court moved the parties Amendment Tryal Costs that by consent the Declaration might be amended paying costs and that a new tryal might be had by consent which was agreed unto and so ruled Bedwell and Fenwick Mich. 1653. Banc. sup BEdwell brought an Action upon the case against Fenwick Arrest of judgement in an Action upon a promise and declares that the Defendant in consideration that the Plaintif would marry E. his Sister he would give his Sister 300 l. for her mariage portion upon his mariage with her and for breach of this promise brings his Action and obtains a verdict against the Defendant The Defendant in Arrest of Iudgement urged that the breach
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
an Ejectione firmae that the Record was not yet transcribed and therefore prayed he might amend the judgement by making it recuperet instead of recuperare debet because it was only the fault of the Clark in mis-entring Roll chief Iustice This is a matter of substance and we cannot tell whether the judgement be final or not If it be not final it ought to be recuperare debeat Amendment Iudgement but if it be final it ought to be recuperet Therefore we will make no rule in it Mich. 1653. Banc. sup BY Roll chief Iustice Vpon what promise an Action lies Averment If one make a lease for years of land rendring rent and after the Lessee promiseth the Lessor to pay the rent an Action lies upon this promise if the promise was made at the time of the Lease made but in the Action brought this promise must be expresly averred to be so Bocking and Symons Hill 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Commmon Pleas Error to reverse a judgement in the Common Pleas. and the Error assigned was that the Action was brought against 3 persons one of whom was within age and that they all appeared by Attorney whereas he within age ought to have appeared by his Guardian and so the Iudgement was erronious as to him and consequently to the rest because it was a joynt Iudgement Roll chief Iustice Iudgement This is a good exception for it being a joynt judgement if it be naught in part as without doubt it is it is naught in the whole And so it was reversed Hill 1653. Banc. sup THe Court was moved to quash an Endictment for not repairing a High-way To quash an Endictment for not repairing a High way The Exception taken was that the Endictment did conclude that the party ought to repair it by reason of his tenements which was said to be uncertain and it ought to have said that he and all those whose estate he hath in the Tenements used to repair it And 2ly It should have said that by reason of the tenure of his Tenements he ought to repair and not by reason of his tenements And upon these Exceptions it was quashed Trevilian and Welman Hill 1653. Banc. sup TRevilian brought an Action upon the Case against Welman for speaking of these words of him Arrest of judgement for words viz. He did put in two Horses to Colonel Windham meaning Colonel Windham that was Governour of Bridgewater and as soon as any warrants came for the pressing of men for the service he acquainted the Cavalliers by reason whereof none could be pressed that were fit and he doth hold constant correspondency with the Cavalliers Vpon Issue joyned and a Verdict found for the Plaintif It was moved in Arrest of Iudgement that the words were not Actionable because utterly uncertain either when Col. Windham was Colonel and when the Horses were put in and the other words are as incertain as these But it was answered that if all the words be taken together they are certain enough to ground an Action for if they be true the Plaintif thereby will be expresly made a Delinquent and have his estate sequâ—stred for adhering and assisting the King against the Parliament and of this opinion was the Court and thereupon the Plaintif had his judgement Hill 1653. Banc. sup IN the Case of one Page and Crook it was said by the Court Who may be Witnesses That it an Action of Trespass be brought against one with a simul cum with others if nothing be proved against the others they may be examined as witnesses in the cause Whitehead and Buckland Hill 165â— VVHitehead brought an Action of Trespass by Original against Buckland for taking away 400 Sheep and 26 Bullocks Demurrer to a replication in Trespass et armis the Defendant pleads the Statute of 21 Iac. of limitations of actions in Bar the Plaintif replyed that he sued forth and Original writ within 6 years and that the process thereupon was duly cotinued upon this the Defendant demurred and for cause shews that the replication is not good for when the Plaintif says that he sued forth an original he ought to have added prout patet per Recordum which is omitted 2ly He hath not pleaded the continuances of his process upon the Record Maynard answered that the replication is good for we cannot take a traverse upon their plea which is surplusage and we need not plead all the continuances but it is sufficient if we plead as much of the Record as goes in Bar. Roll chief Iustice The plea is plain and it is not necessary to allege the continuances for here is an appearance At another day Maynard said the plea in Bar is not good for he pleads an immaterial thing for it matters not when the original was sued forth but he ought to plead not culpable within six years before the Original sued forth Roll chief Iustice This is the usual way of pleading and it is but to put you to a new assignment Plea and the plea is good for you are not tyed up by it for you are not forced to joyn issue for you may make a new assignment but waive the Demurrer on one part and the pleading of the Statute on the other part and take a new plea and go to a tryal otherwise we must give judgement for the Plaintif But the Court would advise Latch at another day said that the replication is naught for the uncertainty for it doth not appear where the Original was sued forth nor the time when for it is only said he sued forth an Original in Michaelmas Term and part of Michaelmas Term may be within six years and the other part may be after the six years and so it cannot be known whether it was sued forth in due time or no and because no place is shewed there can be no Venue Adjourned to the next term At another day the Case was moved again then the 2 exceptions taken that it was not said prout patet per Recordum and had not shewn the continuances of the process were over ruled by the Court and then another Exception was taken to the replication that it concluded hoc perit quod inquiratur per patriam which is not good for it hinders the other party to rejoyn and he is compelled either to joyn issue or to demur Latch answered That the party may not be admitted to take advantage of this fault now upon a general demurrer and he is not tyed up from rejoyning although an issue be offered him for though the plea be informal yet he may pass over and rejoyn Hob. f. 80. Newman and Stones case Notwithstanding an unnecessary traverse the party may plead over and is not bound to joyn issue and the impertinency of the plea shall remain but only as a blemish in form of the plea and shall not be accompted
What Bayly must shew his Warrant A special Bayly is bound to shew his warrant to the party whom he is to Arrest otherwise the party to be arrested is not tyed to obey him but he is not bound to shew his warrant to a Stranger but a known Bayly is not bound to shew his Warrant to any Hill 1653. Upper Bench. BY Roll chief Iustice What Writ of Error is good If an Action be brought against three and one of them is an Infant and they all appear by Attorney and an entire Iudgement is given against them all and they all joyn in a writ of Error to reverse this Iudgement this writ is well brought for the judgement was erronious Iudgement because it is an entire judgement for as to the Infant it cannot be good so it is naught to the rest and he cited one Byres case 9 Iac. in the point Porter and Swetnam Hill 1653. Upper Bench. Trin. 1653. rot 723. A Writ of Error was brought to reverse a Iudgement given upon a non sum informatus in the Common pleas in an Action of Covenant brought upon a Lease for years for not paying the rent reserved Error to reverse a judgement upon a non sum informatus in debt for rent and not repairing and this was against an Executrix of the Assignee of the Lessée for years and it was brought as to the non-payment of the rent upon the words yielding and paying and not upon an express Covenant and for that the words yielding and paying are but a Covenant in Law and only an implyed Covenant and ariseth but from a personal Covenant and not upon a real contract as Latch held who argued for the Plaintif in the writ of Error Therefore he said the Action of Covenant could not here lie against the Execuirix as a warranty in Law binds only the party and not privies as Spencers case is Dyer 257. 2ly The Plaintif in the Action doth not declare that the Defendant was made Executrix and if she be but Executrix de son tort demesne she is not liable to this Action Wadham Windham on the other side held that the words yielding and paying in the Lease are an express Covenant and the Aâ—ion here is for rent become arrear in the time of the Executrix and this Covenant being a Covenant which makes the rent payable ratione terrae it doth concern her and an Executrix de son tort is bound to pay the rent Roll chief Iustice take time to answer both Exceptions but I conceive at present that the words yielding and paying are an express Covenant for if they were not what remedy else would there be to recover the rent Covenant for if she be a disseisor neither debt nor Covenant will lie against her At another day Windham argued that the Action was well brought because this is an express Covenant and not a Covenant in Law 2ly It is not material to shew how she is made Executrix and for the first this must be an express Covenant because it is by Indenture although the word Covenant be not expressed for that word is not a word of Art and so not essential to the constituting of a Covenant Dyer 57.27 E. 4. f. 6. And for the second it is well set forth that she is made Executrix for it is said she entred as an Executrix 2ly She hath admitted herself to be Executrix by pleading Latch on the other side held That here is only a Covenant in Law and so is the book in Dyer cited by Windham and the Executrix is not bound here because it is against the Assignee of a Term and the very words doe shew that here is no express Covenant for the words yielding and paying are not the words of the Lessee but only by construction of Law but are the words of the Lessor enjoyning the Lessee to pay the rent Roll chief Iustice How prove you that this Action lies not against an Assignee Latch The case of Overton Sidney proves it for it proves that Debt lies not and by consequence Covenant lies not And for the second matter the Defendant is not intitled to the lease in privity because it is not shewed that she is made Executrix and so she shall be taken but as an Executrix of her own wrong and so is not chargeable because she hath no privity of estate but by her entry nor is it any where ever mentioâ—ed that any can be Executrix de son tort of a Term. 2ly She cannot be a Termor but she must be a Disseiseress for she cannot apportion her own wrong 3ly She cannot make a title to the Term by her entry as it may be by a que estate and therefore it is against reason that she shall be a Termor and there is no authority against this Pasch 25 Eliz. in this Court King and Burges in Mores Reports Dyer 254. Vpon a Demurrer adjudged that it was not shewed how one was Executor Roll chief Iustice What say you to the Objection that the Action is brought against you as an Executrix and you appear and plead and so admit your self to be an Executrix And I hold that here is an express Covenant for the words are the agreement of both parties to the Indenture and then the Executor is chargeable by them and it is not like to the Case of a Demise and there is no difference here between a Covenant in Law and an express Covenant because it is touching a thing which ariseth from the land and so the Assignee is bound by it and this Case is not like the case cited out of Dyer for there the estate was determined but here it continues And as to the last point I conceive prima facie that she shall be accompted a true Executrix and you by pleading have admitted it and if one enter as an Executor upon a Term he may have the Term if the other will admit him to be a Termor and he shall not be accompted a Disseisor to the Lessor and to strangers he shall be accompted an Executor in Law if they bring Actions against him and the Term shall be assets in his hands As if one receive my rent without my consent I may charge him as my receiver Assets or make him a disseisor at my election Curia ad idem and so the Iudgement was affirmed But afterwards it was moved again and the writ of Error was quashed for a variance betwixt it and the Record for the Record is against the Assigns and the writ of Error is to remove a Record against the Assignee Postea Bromefield and Sir Iohn Williamson Hill 1653. Banc. sup Mich. 1651. rot 353. BRomefield brought an Action of Debt upon an Obligation to perform the Covenants of a Lease for years against Sir Iohn Williamson Demurrer to a replication in debt upon an Obligation the Defendant pleaded that he had performed the Covenants the Plaintif replyes and sets forth a breach
it shall be intended he continued to be his Attorny if it appears as it doth that he prosecuted for him Therefore shew cause Friday next why the judgement should not be affirmed Postea Kemp and Gord. Trin. 1654. Banc. sup Hill 1653. rot 840. AN Action upon the Case was brought by the Maior and Commonalty of the Town of Lyscard in Cornwall against Gord for not grinding at their common Mill. The Defendant demurs to the Declaration Demurrer to a Declaration in an action upon the Case for not grinding at a Mill. And Wadham Windham for the Defendant urged that the Custom is not well alleged upon which the Action was grounded For first it is not shewed that the House where the Defendant inhabiteth and by reason whereof it is supposed he ought to grind at the Mill is held of the Maior and Commonalty 2ly It is not shewed that the Maior and Commonalty are bound to repair the Mill and do constantly keep Grinders and Loaders And for the first this Custome ought to be affixed by reason of the tenure of the House or in respect of the Corn growing upon the ground used with the House and it is not proper to say a man is bound to grind by reason of his House 8 Rep. Farmers case f. 125. Hob. Harding and Greens case 19 Ed. 2. Fitzh Ass â—â—9 For the second this grinding at the Mill is a personal service and if the Maior and Commonalty be not bound to repair the Mill and to find Grinders and Loaders then there is not quid pro quo and the Custom will be unreasonable and a meer oppression 22 Ass Pl. 58. Latch on the other side said here is a good Custom alleged and it is not necessary to shew any tenure in this Action being but an Action upon the Case and not a Secta ad molendinum and so is it agreed in Harding and Greens Case And in 9 Iac. Hill rot 691. an Action was brought for this very Cause and the Custom was then allowed to be good Roll chief Iustice I believe this is a good Custom and the Corporation is bound to repair the Mill Custom and there can be no prejudice for the party to grind here and the Custom hath been already tryed and found good Therefore let the Plaintiff have his Iudgement nisi c. Iones and Graves Trin. 1654. Banc. sup IN the Case of one Iones and Graves It was said by Roll chief Iustice Where a Writ is abated where it is abateable That if a Writ of Covenant be brought against three and one of them die the Writ is abated only to him but is not abated to the rest but only abateable but Latch fortment that it is abated to all Tompkins and Clark Trin. 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Court at Newcastle upon Tyne Error to reverse a judgement in an action for words in an Action upon the Case for these words He meaning the Plaintif is a base beggarly Rascal and hath cozened the Parliament a hundred times and deserves to ride on the wooden horse standing on the Sand hill The Exceptions were that the words are not actionable for the Plaintif is at no loss or damage by speaking of them nor is thereby endangered of his life or to be punished corporally 2ly The words are not said to be spoken of the Plaintif nor to the Plaintif 3ly The Venire is not well issued Roll chief Iustice Reversetur nisi c. Stavley and Ulithorp Trin. 1654. Banc. sup LAtch moved again for judgement in this case formerly spoken to For judgement in an action on the Statute of 2 Ed. 6. concerning tithes notwithstanding the exception insisted upon by Shaftoe after the Court had delivered some opinion viz. that it was not expressed that the Parliament was held by prorogation because it is not necessary it should be so expressed 2ly The Action is here brought upon the second branch of the Statute which is that all persons shall set forth their tithes and the word subject is only mentioned in the first clause Maynard on the same side said that this mis-recital if it be a mis-recital affirms the Statute and it is not a false recital and therefore it doth not hurt Roll chief Iustice It is not good to make such recitals of Statutes in a Declaration Recitals nor would I have any recital made hereafter more than is necessary for the gist of the Action Shaftoe insisted upon it That the mis-recital here is a material Exception for the recital is not true for it is not all one to say the Subject of the King and to say the Subject of the then King for the former words goe to the pollitick capacity of the King as King and the latter words go to the natural capacity of his particular person Roll chief Iustice But what say you to that which is said on the other side That the Action is brought upon the second clause of the Statute which is that all persons shall set forth their tithes and not upon the first Clause which speaks of all Subjects of the King And the recital here is not material to the Action It is true here is a mis-recital and if the Action were brought upon the first Clause of the Statute it would not be good but it is not so here Therefore let the Plaintif have his Iudgement nisi Antea Trin. 1654. Banc. sup THe Court was moved for an Attachment against the Sherif of Staffordshire For an Attachment for making a frivolous return of a Habeas Corpus viz. That the Committee for poor prisoners had ordered he should not bring the body till they had consulted with the Lord chief Iustice Roll chief Iustice Take an Alias habeas Corpus with a pain of 80 l. Roby and Twelves Trin. 1654. Banc. sup Trin. 1652. rot 502. IN a special Verdict in an Ejectione firmae it was found Special verdict in an Ejectione firmae that there was a custom within the Manor of Castle Dunnington that any Copyholder of that Manor may make a writing in the nature of a Letter of Attorney to two Copyholders of the same Manor to surrender his Copyhold after his death The question was whether this was a good custom or not Alleyn argued for the custom that it was a good custom because such customs are not to be governed by the rules of the Common Law but by the rules of natural reason and are considerable in themselves and such customs may restrain the Common Law and the Common Law doth tollerate them And this custom that gives power to make this surrender after the Copyholders death is not unreasonable for the power given is not countermanded by his death no more than an Attorney is restrained by his masters death to act in the cause And in Butler and Baâ—ers case by the delivery of a deed after the death of the party the
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
Tryal at the Bar between one Mathew and the Hundred of Godalming in Surrey Hacker and Newborn a Sussex Cause Mich. 1654. Banc. sup IF a Man make his Will in his Sickness What shall be a Will by compulsion by the over-importuning of his Wife to the end he may be quiet this shall be said to be a Will made by constraint and shall not be a good Will By Roll chief Iustice In a Tryal at the Bar in the Case of one Hacker and Newborn Mich. 1654. Bronge and More Mich. 1654. Banc. sup MAster Sollicitor general moved in arrest of judgement in a replevin Arrest of judgement in a Replevin and took these exceptions-to the avowry 1. That the party did avow the taking of the Cattel dammage-feasant in a Common where he had Common and doth not shew that he hath Common for his Cattel levant and couchant 2ly He doth not shew that he was dampnified by the Cattel that were distreyned dammage-feasant and it may be there was common enough for him notwithstanding the other Cattel distreyned were there What distress lawfull without averment of dammages and so he was not dampnified by their being there Roll chief Iustice answered if one who hath no right to Common do put his Cattel upon the Common he who is a Commoner may take the Cattel dammage-feasant upon the Common and it is not necessary for him to aver that he hath dammage by them for he hath an interest which doth authorise him to remove the nusance Interest but he must make a Title to the Common and if he have made it here but by implication it is well enough for it is now helped by the verdict Title by implication and you have passed over your advantage by not demurring to him Mich. 1654. Banc. sup BY Roll chief Iustice A Deed good in part and fraudulent in part A Deed may be fraudulent in part and good in part and so he said it had been adjudged in the Case of one Lydal of the Middle-Temple Banks and Pratt Trin. 1654. Banc. sup Hill 1653. rot 603. PRatt brought an Action upon the Case against Banks upon an Aumpsit Error in an action of the Case by an Attorney so fees and solliciting to pay him such fees as should be due unto him as his Attorney in prosecuting a sute for him in the Common-pleas and such monies as he should lay out in solliciting a sute for him in the Chancery and upon non-assumpsit pleaded a Verdict was given for the Plaintiff and a judgement thereupon The Defendant brought a Writ of error in this Court and assigns for error that the Plaintiff did not shew particularly what sums of mony he had laid out for him nor to whom he had paid it as he ought to do and Tooke and Sir Thomas Walsinghams case in this Court was cited to prove it 2ly The Assumpsit was that he should pay him his fees so long as he should continue to be his Attorny it appears not that he continued to be his Attorny in the sute wherein he supposeth he prosecuted for him But for the first exception Roll chief Iustice said A general Declaration good that it is not necessary to set down particularly the several sums of mony he had laid out for this might make the Declaration tedious and if the Plaintiff should as it is objected he may bring another Action for some part of the monies recovered in this sute you may plead this recovery generally in bar of such Action And as to the 2d exception it shall be intended that he did continue to be his Attorney if it appears as it doth Intention that he prosecuted for him The case was moved again the next Term and the former exceptions only insisted upon Iudgement affirmed But Roll chief Iustice over-ruled the exceptions and affirmed the Iudgement Antea Mich. 1654. Banc. sup THe Court was moved To change the Bayl. that two that were bayl for one in an Action might be discharged and two others accepted of because the party was to examine them as Witnesses in the Cause which was granted upon consent of the parties VVise and Jeffryes Hill 1654. Banc. sup Mich. 1654. rot Q. VVIse a Corn-Merchant and a Baker in London brought an Action up-upon the Case against Ieffryes for speaking these words of him Action for words brought by a Corn-Merchant Adjective words viz. Thou art a broken fellow and hast cheated me of 200 l. Vpon a verdict for the Plaintif it was moved in arrest of judgement that the words are not actionable because the words are adjectively spoken and are not positive words nor of a certain signification for they may be meant that he was broken in his body and not in his estate But VVild answered that 1. The words are spoken of a Tradesman which may be a Bankrupt and 2ly Here is an averment that the words were meant to signifie that the Plaintif was a Bankrupt and besides here is a verdict for the Plaintif Green replyed that it doth not appear that the words were spoken of him in relation to his Trade or Profession and to say that thou hast cheated me were adjudged not actionable in Hills case 2 Car. and in one Iohnsons case Roll chief Iustice I do not agree the Case of 2 Car. cited but to the Case in question take all the words together as they are laid they imply he is broken in his Trade and the word cheated enforceth this sense and the words are very scandalous and the averment Iudgement and the verdict makes it more strong Therefore judicium pro querente nisi c. Fowkes and Copsye Hill 1654. IT was said in this Case that if there be divers breaches of an Award One breach of an Award assignable you may assign but one of them in an Action brought for breach of the Award Michill and Hepworth Hill 1654. Banc. sup Trin. 1654. rot 717. A Writ of Error was brought to reverse a judgement given in the Common-pleas in an Action of Trespass for an Assault Error in Iudgement in Trespass and taking away of the Plaintifs Goods and amongst other for taking away of Writings and two Errors were assigned 1. That the Declaration was with a quod cum A quod cum not good in in Trespass Otherwise in Trespass on the case which was said is not good in an Action of Trespass 2. That the Plaintif did not set forth what the writings were which were taken away but the first exception was only relyed upon and to that Roll chief Iustice answered That if the Action were an Action of Trespass upon the case though it were with a vi et armis it might be good with a quod cum but the Action here is a meer Action of Trespass vi et armis Therefore shew cause why the Iudgement shall not be reversed Kirk and Lucas Hill 1654. Banc. sup Hill 1653. rot 579.
KIrk brought an Action of Accompt against Lucas What shall be a good plea in an accompt before Auditors the Defendant Lucas pleads ne unques receptor and upon this Issue there was a verdict for the Plaintif that the Defendant shall accompt whereupon Auditors being assigned he pleads before them in discharge of the Accompt that he received the money of the Plaintif to deliver over and accordingly he had delivered it over The question was whether this plea pleaded before the Auditors was a good plea in discharge of the Accompt Twisden said It was not a good plea in discharge of the Accompt before the Auditors but it had been a good plea in bar of the Action and here it is not shewed that there was any direction given to pay the money over Roll chief Iustice If he plead that it was paid by his consent it is a good plea before the Auditors and this is a good plea in bar if the money be paid accordingly Therefore take your judgement Iudgement nisi The Protector against Richardson Hill 1654. Banc. sup A Writ of Error was brought by Richardson to reverse a judgement given against him Error upon a Iudgement upon an Information for Extortion being by profession a Tayler upon an information of extortion exhibited against him at Oxford at the Assizes there for taking more money of one that bound himself Apprentice with him than by Law he ought and the Error assigned was that the Iustices of Assize have no power to determine offences of this nature and Metcalfs case 11 Rep. was urged and the Statute of 22 H. 8. C. 5. and 28 H. 8. C. 5. But Crook Seignior answered That as they are Iustices of Oyer and Terminer they have power by their Commission to determine offences of this nature and it shall be intended they proceeded here by virtue of that Commission and in 7 Eliz. in Dyer it is a quaere whether the Statute be meant of the Courts at Westminster Certainty is required or no and it would be inconvenient if the Iustices should not enquire of such offences at the Assizes and he cited Gregories case and Cooks Iurisdictions of Courts to prove they have authority Roll chief Iustice But it appears not here by vertue of which of their Commissions you have tryed the offence but you have jumbled the Commissions together in the Record and they have not authority by all their Commissions and besides there is another fault in the judgement for it is not said it is considered by the Court but only it is considered By the Statute of 22 H. 8. the Iustices of Assize by vertue of their Commission of Oyer and Terminer have power to try divers offences if they be not restrained to certain Courts but for the reasons aforesaid Shew cause why the Iudgement should not be reversed Protector and Cartwright Hill 1654. Banc. sup IT was moved on the behalf of Cartwright that he might have allowance of his Plea confessed by Mr. Attorney general pleaded to a quo Warranto brought for the Protector against him for certain liberties which he claimed within the Manor of Offingham in Nottinghamshire For allowance of a plea confessed by the Attorney general the Exception to the plea was that he claimed the Assize of Wine to which it was answered that it is intended only of the measures for Wine and that the Plea had been read and examined by Iustice Ask Roll chief Iustice Let Iustice Ask examine it again Tost and Daye Hill 1654. Banc. sup Trin. 1653. rot 547. A Writ of Error was brought to reverse a judgement given in an Action upon the Case brought against a Sherif for restoring of goods taken in Excution to the party from whom they were taken Error to reverse a judgement in an action upon the Case and for endorsing of nulla bona upon the writ of Execution and delivering over the writ so endorsed to the new Sherif his Successor The Errors assigned ware these 1. It is not said in the Record that he returned nulla bona but only that he endorsed nulla bona upon the writ 2ly It is said that he delivered the writ thus endorsed to the new Sherif but doth not shew that the writ was delivered over by Indenture betwixt the new Sherif and the old to be returned by him 3ly It appears not whether there were any return at all made of the writ by the new Sherif or the old And 4ly The Action is not laid in the County where it ought to be for it is neither brought in the County where the writ was indorsed nor where it was delivered over Latch answered that the Action was brought for re-delivering the goods taken in execution back again to the party Iudgement reversed and not for the endorsing of the writ and delivering it over to the new Sherif But the Iudgement was reversed nisi c. Postea Porter and Swetnam Hill 1654. Banc. sup Trin. 1654. rot 393. IN this Case upon a writ of Error brought upon a judgement given upon an Action of Covenant for not paying of rent reserved upon a Lease for years by Indenture Error in Covenant Express Covenant Writ of Error quashed and judgement affirmed After the opinion of the Court was delivered that the words yielding and paying in the Indenture made an express Covenant and were not a bare Covenant in Law and that an Action of Covenant did well lie upon them the writ of Error was quashed for a defect in it and a new writ of Error brought and thereupon the judgement was again prayed to be affirmed which was done nisi c. Nota. Antea Hill 1654. Banc. sup THe Court was moved for a Habeas Corpus to remove a Prisoner in Northampton Gaol Habeas Corpus that was convicted of felony and had been burnt in the hand Endictment Action upon the Case upon an Affidavit that the Gaoler used him hardly But Roll chief Iustice answered that it could not be but they might either endict the Gaoler or bring an Action against him Hill 1654. Banc. sup THe Court was moved upon an Affidavit for a new tryal For a new Tryal because the Iury were not kept together till they had given their verdict as they ought to be But Roll chief Iustice answered this is a misdemeanor yet the verdict is a good verdict notwithstanding The Iuries misdemeanor spoils noâ— the Verdict yet we will hear the Councel on both sides before we conclude any thing The same Term Iudgement was given upon another motion made for a new Tryal The Protector and Lowr Hill 1654. Banc. sup BArton moved to quash an Endictment preferred against Lowr at the Assizes at Cornwall To quash an Endictment for speaking of scandalous words against the Parliament The Exception taken was that it did not appear in the Endictment that the Parliament was sitting at the time when the words were spoken But Roll chief
Operative words which makes it certain enough the word is used here absolutely shall be so taken in 3 Car. Iaques and Thorowgoods case in the Common pleas the word equally was taken operatively and not in common construction and in Lewin and Dods case in the Common pleas 36 and 37 Eliz. the word equally was held by two Iudges to make a joynt-tenancy and not a tenancy in common and in this Court also the Iudges were divided at the first but afterwards Popham changed his opinion and it was adjudged a tenancy in common and afterwards a writ of Error was brought in the Exchequer Chamber and there the judgement was affirmed Pasch 41 Eliz. B. r. rot 270. Also the subject matter here is apt to receive a tenancy in common here being intended a provision for children and their several posterities which a survivorship would destroy 37 H. 8. Bro. Devise 29. and the very intent of the Devisor appears in the will to be as I have argued Roll chief Iustice I hold here is a tenancy in common and that it shall goe throughout Words not to be construed to make them idle and is not to be divided and the intent of the devisor appears in the will that every one shall have his part and their heirs for here is a provision made for Children and the word respectively would be idle if another construction should be made Iudgement for the Plaintif and would signifie no more than what the law said without it Ask and Newdigate ad idem and Newdigate cited Dyer 316 Huntlyes case so judgement was given for the Plaintif nisi Shepheard and Gray Hill 1654. Banc sup Trin. 1654. r. 672. A Writ of Error was brought to reverse a judgement given in an Action upon the Case in the Court at Doncaster Error in Action upon the Case and the Error assigned was in the judgement which was entred thus and the said Shepheard to wit the Defendant shall be in mercy of W. Gray to wit the Plaintif Roll chief Iustice This is erronious for he ought not to be in mercy of the Plaintif but of the State Therefore let the judgement be reversed Reversed Lamplew and Hewson Hill 1654. Banc. sup AFter a verdict in an Action upon the Case brought for these words Arrest of judgement in an Action for words viz. I was never a Traytor to the State as you have been It was moved in Arrest of Iudgement by Turner for the incertainty of the Declaration for that it appears not thereby that the words were spoken of the Plaintif or to the Plaintif and because it is not said that the words were spoken falso et malitiose Shafto of Councel on the other side answered that it appears the words were spoken upon conference betwixt the parties and thereby doth appear a sufficient averment that the words were spoken of the Plaintif Roll chief Iustice The Declaration implies that the words were spoken falso et malitiose Implyed averment good Iudgement ther néeds not an express averment that they were so spoken as there ought to be in an Endictment and this Declaration is laid two years after the words were spoken Therefore take your Iudgement except better matter be shewn Hill 1654. Banc. sup A Forein plea To swear a forein plea. which is to out the Court of the Iurisdiction in the cause depending ought to be sworn to be true or else is not to be allowed by the Court. So ruled by the Court. Dod and Herbert Hill 1654. Banc. sup Trin. 1655. rot Q. DOd brought an Action of Debt against Gregory Herbert an Attorny of this Court upon an Obligation to stand to an Award Debt upon an Obligation to stand to an Award The Defendant pleads no Award made The Plaintif replies and sets forth the Award which was that the Defendant should pay unto the Plaintif 100 l. at two several daies of payment and assigns the breach in not paying the 100 l. accordingly To this replication the Defendant demurs and the exception taken was that it doth not appear in the Award that the Award is reciprocal but that is only made on one part It is true by the allegation in the pleading it doth appear but this helps it not for it ought to appear in the Award it self Award de super praemissis Breach not well assigned Roll chief Iustice the Award appears to be made de super praemissis and that may help it But the Plaintif hath not well assigned the breach for the breach is not assigned upon a good part of the Award for there is no cause set forth in the Award why the Defendant should pay the 100 l. Therefore nil capiat per billam nisi c. Henly and Baynton Trin. 1654. Banc. sup Trin. 1654. rot 1384. HEnly brought an Action upon the Case against Sir Edward Baynton Arrest of judgement in an Action up the Case for words for speaking of these words of him viz. You have cousened the State of 20000 l. and I will prove it for you have received five and twenty thousand pounds profits of the Office and not compounded for it and have foisted in words into the order for your composition After a verdict found for the Plaintif it was moved in arrest of Iudgement that the words as they are laid in the Declaration are not actionable for the Plaintif doth not entitle himself to the Office but only to eleven parts of the profits of the Office and so he cannot be scandalized by the words as an Officer Hob. 267 268. Sir Miles Fleetswoods case was cited and Hob. 76. Bray and Humes case and 4 Iac. Cars and Rans case and Hill 14 Iac. Snails case and 20 Iac. Curle and Tucks case 2ly Here is no averment that Whitwick during whose life he claims the office was alive when the words were spoken and if he were dead then he was no officer And the subsequent words do qualifie the former part of the words for the receiving of the mony is not an offence or cosening of the State 14 Iac. Godard and Gilberts case in the Common-pleas and for the word foisting it is an insensible word Insensible word and therefore cannot be actionable and the Plaintif doth not aver that he did not foist in words into this order No Action where no dammages but only sayes he did not foist in words into any order And though the words were actionable yet at the time when the Action was brought Henly was pardoned by the Act of Oblivion if he had done it and so could not be damnified by the Defendants speaking the words if they were true and so no Action lies for no dammages could be recovered Hob. 82.294 Chuddington and VVilkins case 1 E. 3.3.12 Eliz. Bartons case 20 Ass Pl. 7.6 Rep. 13.16 Iac. Serles case Shafto on the same side urged that it appears not by the Declaration that Henly was an
Officer or that Sir Edward Bayâ—ton knew him to be so and so here is an ill inducement and Sir Miles Fleetwoods case is that he ought to know that he was an Officer and there the words were positive and certain but so they are not here nor do relate to his Office and the words are to be construed as they lye together and so some of them are of a very ambiguous construction and uncertain and others of them are insensible and an averment cannot make senseless words to be sense And in the case of Curle and Tuck 20 Iac. no judgement was ever given and yet that was stronger than our case It was also urged by Powis on the same side that it appears not that the mony spoken of did belong to the State or was to be compounded for for it may be he received the monies before he was a Delinquent and then he was not to compound for them Hob. 3.23 Bradshaw and Walkers case cited Sergeant Twisden for the Plaintif held the words to be actionable and cited 8 Car. Culme and Denhams case where it was adjudged that to say a man was a cosening Knave are actionable words and 16 Iac. Sir VVilliam Brunkers case and Hill 1651 Strode and Homes case in this Court and Trin. 1653. Townesend and Barkers case and in this Case is an instancing wherein the Plaintif hath cosened which makes it more plain and it is also aggravated by saying he had cosened the State for he hath thereby incensed the State against the Plaintif and the words in themselves are scandalous and prejudicial also for if he hath not compounded he is no Officer but hath lost his Office being lyable to be sequestred and the words here shall be taken in sensu composito and not in sensu diviso Sensus compositus et sensus divisus for they are positive words 8 Car. Redwood Smiths case and the last words are only spoken to instance the Cause of speaking of the former and it is not material whether they be actionable or not but the meaning of the word foisting is not so doubtfull but is very well known and shall be intended that he had falsely put in words into the order and so they are scandalous as well as the former 5 Car. Alleyns Case And there is no necessity here to aver the life of VVhitwick as is objected on the other side for the Office was for the life of Henly and VVhitwick and the surviver of them and if the averment were necessary in some Cases yet here it is not because Whitwick is an Officer upon Record in this Court where the Action is brought and seen to be alive here in Court and besides the Statute of 21 Iac. would help this if need required it being after a verdict and not upon a demurrer and besides here is an averment that he hath not foisted words into this order in effect for he hath averred that he hath not foisted words into any order and so consequently not into this 2 R. 3. f. 7. 12 H. 7. f. 23. And the Act of oblivion hath not pardoned this offence as is also objected and though it should yet it must be pleaded that the party may appear not to be excepted on t of it as many are and the Iury have here found for the Plaintif and so it shall be intended that he is out of the Act and he ought to have averred it before or have given it in evidence and so he prayed judgement for the Plaintif Roll chief Iustice you mistake the exception for they say that Mr. Henly is pardoned by the Act and so cannot be damnified by the words if they were true and so they are not actionable Twisden By their pleading it appears not that Mr. Henly is within the pardon for there are many persons excepted out of it Roll chief Iustice But if it be so yet if the words do not relate to him as an Officer they are not actionable Wild The words are spoken intentionally in relation to his Office Roll chief Iustice He was not an Officer at the time of the words spoken for he was sequestred and then what scandal can they be to him Wild The Iury hath found that he was damnified though the words were true The first question here is whether the words as they are laid relate to his Office for he is not an Officer nor can the Action be brought by him as he is so but this is not much to the purpose but the deceit alleged to be done to the State charged upon him is the cause of the Action and it is said that he deceived the State in his composition for his fine and for foisting words into the order and if he foisted not any words into any order then he did it not into this Averment And there is no need to aver Whitwicks life for he could not receive the profits of the Office if Whitwick were dead and therefore he shall be intended to he alive and there doth dammage arise to the Plaintif by the speaking of the words for he is in danger thereby of sequestration by such foisting of the words and in the common understanding of the words they shall be taken to be meant of falsifying of the Committees order and one man ought not to slander another and say that you had not notice of the Ordinance touching which he is slandered it is not to the purpose for you ought to take notice of the Ordinance Newdigate Iustice to the same effect that the words are actionable for as they are laid Henly is brought therby within the compass of Sequestration and the words in themselves are actionable because they instance in what thing he cosened the State and the subsequent words do not qualifie the former but aggravate the matter Iudgement for the Plaintiff and I conceive it not necessary to aver Whitwicks life but if it be it is averred here and so judgement was given for the Plaintif nisi c. North and Iames. Hill 1654. Banc. sup Trin. 1651. rot 1666. A Writ of error was brought to reverse a judgement given in an Action of Trespass in the Common-pleas upon a demurrer Error to reverse a judgement in Trespass Discontinuances the error assigned was that there were discontinuances in the Process and it was shewed by Howell of Councell with the Defendant in the Writ of error that this is helped by the late Statute which sayes that no Writ of error shall stay execution and Iudgements upon Demurrers as this is are within the Statute Roll chief Iustice By your reason a Writ of error will not now lye for any thing The branch of the Statute is to be intended of matter in form only but this is matter of substance notwithstanding the branch of the Statute alleged Reversed Therefore let the judgement be reversed nisi c. Yokehurst against Scott Hill 1654. Banc. sup Hill 1653. rot 35. YOkehurst brought
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
he ought also to be heard to all the other crimes objected against him Therefore let him be restored nisi c. to morrow Iudgement nisi Howard and Howard Trin. 1655. Banc. sup MY Lord Howard being taken by a Latitat out of this Court appeared upon the day of the retorn of the Writ in Court Peerage pleaded and pleaded his privilege of Péerage and demands in judgement of the Writ and thereupon to be discharged Powis of Councel against him moved that he might put in special bayl Bayl. Demurrer Glyn chief Iustice You ought to demur to his Plea for he is now in Custodia and therefore he need not put in bayl Nota. The Protector and Norrice Trin. 1655. Banc. sup NOrrice being committed to prison for speaking words against the Parliament in the year 1650. was thereupon endicted To discharge a Prisoner upon the Act of Oblivion and was convicted and fined 100 l. and ordered to lye in prison untill he could find Sureties for his good behaviour afterwards he was brought into Court by vertue of a Habeas Corpus and his Councel moved on his behalf that he might be discharged because he was pardoned by the Act of Oblivion It was urged against this for the Protector that he may be a person excepted out of the Act Surmise and therefore ought not upon this surmise to be delivered Glyn chief Iustice It doth not appear to us that he is not excepted and therefore we cannot deliver him Thereupon it was moved for the Prisoner for a Certiorari to remove the Record hither Certiorari Entry whereby he stands convicted that he might enter the suggestion upon it that he is pardoned by the Act. Glyn chief Iustice Taxe it Webberly and Sir John Lenthall Trin. 1655. Banc. sup THe Court was moved for Webberly against Sir Iohn Lenthall Motion against Sir Iohn Lenthall for detaining a Prisoner discharged Action mony False imprisonment Endictment that whereas he being a Prisoner in the Vpper Bench prison for Debt and having agreed with his Creditors was discharged by them yet Sir Iohn Lenthall did keep him Prisoner till he should pay him Action mony Glyn chief Iustice You have two remedies against Sir Iohn Lenthall for this for either you may bring your Action of false imprisonment against him or you may endict him for extortion Yet let Sir Iohn shew cause why he should not discharge him paying his fees Strowd and Keckwith Trin. 1655. Banc. sup Mich. 1653. rot 119. STrowd brought an Audita querela against Keckwith Audita querela The Case was this Strowd acknowledged a Iudgement 17 Car. for 2000 l. upon which Iudgement an Elegit was taken forth against Strowds lands in the County of B. and lands thereupon were found and extended and delivered to the Counsee and the Elegit filed and the lands enjoyed accordingly for six years then the Counsee dies and makes his wife Executrix who takes out a Scire facias upon the Iudgment for 2000 l. directed the Sherif of the County of C. being another County and upon two Nichils retorned hath judgment and execution against Strowd for the same Debt who thereupon brings his Audita querela Wadham Windham held that the Audita querela did lye and cited 15 H. 7.7 L. Q. f. 40. and said this was an illegal proceeding against Strowd because that after an Elegit executed no other execution lies but where there bath been no execution of lands in the same County or in another upon the first Elegit but here is land found Execution and the Elegit filed and the lands enjoyed Elegit to divers Counties No Elegit after an Elegit Iudgement 18 E. 12. Fitzh tit Execution 240. Dyer 1â—2 an Elegit may be prayed to divers Counties Glyn chief Iustice The Case is adjudged in Hobardâ— Reports that one cannot have an Elegit after a former Elegit if lands be thereby found and the Elegit filed Therefore shew cause why judgement shall not be given for the Plaintif Price and Carr. Hill 1654. Banc. sup PRice brought an Action upon the Case against Carr for speaking these words of her A pox upon you for a Welsh whore Arrest of judgement in an Action on the Case for words for thou wentest into the Country and emptiedst thy Caâ—k of a Bastard After a verdict for the Plaintif it was moved in arrest of Iudgement that the former words videlicet the saying the was a VVelsh Whore are not actionable because no Action lyes at the Common-law for calling a woman Whore and the last words are uncertain words and less actionable The judgement was then stayed till the Plaintif should move Whereupon at another day the Plaintif moved for judgement and a Case in 1â— Iac. in this Court was cited and 41 Eliz. VVheeler and Aâ—â—gâ—ls case and it was urged that the words shall be interpreted according to common intention and understanding of the hearers and shall be adjudged very scandalous Wild on the other side said they are frivolous words and not to be regarded for they do not say positively she is a Whore nor that she had a Bastard but the words are of a very uncertain meaning for it appears not when the words were spoken or when she went into the Country nor is there any averment what is meant by the words Glyn chief Iustice Words actionable Now since the Act the calling of a woman Whore and saying the had a Bastard will bear an Action and here are words certain enough to fix a particular Scandal upon the party by application of the words and they are made more than general words or words of heat and passion for there is a general application of them and a sufficient averment and for the time of speaking them we will not presume they were spoken four years since which was before the late Statute made against Adultery Iudgement Therefore let the Plaintif have her Iudgement Davis and Matthews Pasch 1655. Banc. sup THe Case was this Bond put in sure in the Prerogative Court There being a controverste in the Prerogative Court between the Widow of one that died intestate and one of the intestates next kindred who should have Letters of Administration of the goods and Chattels of the Intestatè It was at length agreed betwixt the parties that the widow should have Letters of administration and that thereupon she should enter into Bond in the prerogative Office to make an equal distribution of the goods and chattels of the intestate amongst his kindred whereupon Letters of Administration were committed unto her and she afterwards entred into bond accordingly and for not performing the condition of the bond in making an equal distribution of the estate the bond was put in sute in the prerogative Court Prohibition upon which a prohibition was prayed and a rule thereupon made for the Defendant to shew cause why it should not be granted and af
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
Extinguishment 20 F FEe-simple 1 Felony 2 Feofments 3 Feme vid. Baron and Feme 4 Filing 5 Fine 6 Forseiture 7 Forgery 8 Formedon 9 Fraction vid. Tyme 10 Franktenement 11 Fraud 12 G GAole vid. Prison 1 Good behaviour 2 Grant 3 Guardian 4 H HAbeas Corpus 1 Habere sacias possessionem 2 Heir 3 High way vid. way 4 Homage 5 Honour 6 I IEofails 1 Imparlance 2 Implication 3 Imprisonment 4 Impropriation 5 Infant 6 Information 7 Inheritance 8 Injunction 9 Inquisition 10 Intendment 11 Interest 12 Interpretation 13 Issue 14 Issues 15 Iudgement 16 Iurisdiction vid. Courts 17 Iury 18 Iustice of Peace vid. Peace 19 Iustification 20 K KIng 1 L LAtitat 1 Law 2 Legacy 3 Lease 4 Levari facisâ— vid. Execution 5 License 6 Livery 7 Limitation 8 Local and Transitory 9 M MAintenance 1 Mandamus 2 Manslaughter 3 Mariage 4 Maxime 5 Melius inquirendum 6 Merger 7 Miscontinuance vid. Process 8 Monstrans de droit 9 Motion 10 Murther 11 N NEgative preignans 1 Ne excat regnum 1 Nomine poenae 2 Non obstante 3 Non sute 4 Notice 5 Nudum pactum 6 Nusance 7 O OAth vid. Affidavit 1 Obligation vid. Deed 2 Offences 3 Office 4 Order 5 Ordinance of Parliament vid. Parliament 6 Ordinary 7 Original 8 Outlawry 9 Ousting 10 P PAin 1 Payne fort et dure or pressing 2 Payment 3 Panel vid. Iury 4 Pardon 5 Parish 6 Parliament 7 Paroll 8 Party and Privy 9 Patent and Patentee 10 Pauper 11 Peace 12 Peer and Peerage 13 Peremptory 14 Perjury 15 Perpetuity 16 Place 17 Plaint 18 Plea and Pleading 19 Possession 20 Postea 21 Praecipe 22 Prerogative vid. King 23 Prescription 24 Presentation 25 Presentment 26 Principle and Accessory 27 Prison and Prisoner 28 Privilege 29 Precedendo 30 Procecdings 31 Process 32 Proclamation 33 Proof 34 Prohibition 35 Promise 36 Property 37 Protection 38 Protestation 39 Purchase 40 Q QUashing of Endictments and Orders c. vid. Endictments Orders c. 1 Quo Warranto 2 R REcital 1 Recognisance 2 Record 3 Recovery 4 Recusant 4 Reference 5 Rejoynder 6 Relation 7 Release 8 Repeal vid. Statute 9 Repleader 10 Replication 11 Request 12 Rescous 13 Rent 14 Restitution 14 Retainer 15 Retorn 16 Reversal 17 Reviver 18 Revocation 19 Right 20 Robbery 21 Rule 22 S SAle 1 Satisfaction 2 Saving 3 Scandalum Magnatum 4 Scire facias 5 Security 6 Seisure 7 Sequestration 8 Settlement 9 Sewers 10 Statutes 11 Submission 12 Sureties 13 Suggestion 14 Sutes 15 Summons 16 Supersedeas 17 Superstition 18 Supply 19 Surmise vid. Suggestion 20 Surplusage 21 Surrender 22 Suspension 23 T TAles 1 Tayl vid. Fee-tayl 2 Tax 3 Tenant and Tenancy 4 Tenement 5 Tender 6 Term 7 Tenure 8 Tithes 9 Title 10 Transferring 11 Transitory vid. Local 12 Traverse 13 Treason 14 Trespass 15 Trover 16 Tryal 17 Trust 18 Tyme 19 V VAgrant or Beggar 1 Value 2 Variance 3 Venire and Venue 4 Verdict 5 Vesting 6 Viccarage 7 Victuals 8 View 9 Void 10 Use 11 Utlawry vid. Outlawry 12 W VVAger of Law vid. Law 1 Waiver 2 Warrant 2 Warren 3 Waste 4 Wayes 5 Will 6 Witchcraft 7 Witness 8 Words 9 Writ 10 An Advertisement to the Reader in explanation of the method observed in the Table following BE pleased to take notice the Table following generally refers to the pages in the Book which you are directed unto by the first figures and the Letter C set after those figures refers you to the number of the Cases contained in that page that is to say the first second third c. Case but if the Case begin on one side and go on to another you are directed to that page and Case where the Case begins and for your greater ease you may find most of the matters you are to look for expressed in the Margent to that Case whether you are directed but if you do not you shall be sure to find it in some part of the Case A large TABLE OF ALL THE SEVERAL MATTERS Contained in the whole BOOK Alphabetically digested under proper and particular heads agreeing to the various matters therein contained 1A Abatement VVHere a writ of Error is abatable and where not but may be amended p. 7. C. 2. p. 78 Where one may plead an abatement of the writ and where not vid. writ 2 Abreviation What abreviations are good and what not 182 C. 2. 227 C. 2. 290 3 Action For what causes an Action upon the case will lie and for what not p. 3. vid. Case Where an Action may be joynt and where there must be several actions p. 3. 153 154 156 C. 1. 157 C. 2. 190 C. 2. 203 C. 1. 297 C. 3. 481 C. 2. Where one may have his election of action and the reason of it p. 4. 19 C. 4. p. 31 C. 2. 99 100. 342 C. 1. 347. Where an action of the case lies for words and where not vid Case Where Baron and Feme are to joyn in an action and where not p. 9 C. 4. p. 52 C. 1. 112 113. 129 C. 4. 313 314. Where an action of Trespass lies and where not vid. Trespass Where one is well intitled to an Action and where not 107 108 300 301 393 C. 2. 401 402 461 C. 3. 472 473. Where an Action may be discontinued by the Court where not 120 C. 2. 134 C. 1. 477. Where one may plead in bar of an Action and where not and what and what not 428 C. 3. Where election of action lies and where not 131 C. 2. 164 C. 3. 287 C. 1. 384 427 C. 1. Where divers actions may be brought for one thing and where not 201 202 300 C. 1. 398 399. Where actions are to be laid and where not 460 C. 3. What actions are barred by the Statute of limitations of actions 21 Iac. and what not 214 215 388 389 401 402. Where an action is well commenced and where not 215 C. 1. 223 C. 1. 301 331 332 c. 349 350 381 C. 2. 383 C. 1. 3â—3 C. 1. 424 C. 1. Where an action lies upon a Statute and where not 318 319 424 C. 1. 427 C. 2. 467 468 c. By what acts an action may be suspended and by what not 384. 4 Accessory vid. Principal 5 Accompt Where an action of accompt lies and where not 160 161 287 C. 1. 353 354 355. 407. What plea is good before auditors in an accompt and what not 353 354 355 410 C. 1. 430 C. 1. 6 Acquittance What acquittance is well given and what not 394. 7 Additions Where an addition is to be given to the party and where it needs not p. 26 C. 3. p. 19 151 C. 2. 394 C. 3. What are additions to be given to the party and what not 173. C. 1. Advantage Where one shall take advantage of a thing and where not p. 71. 100 C. 2. 129 C. 3. 232 C. 3. 358 C. 1. 403. 8 Adjournment Where an adjourment is necessary and where not 179. 9
of covenant or promise is well assigned and what not p. 107. C. 1. 393. C. 3. 9 By-Law vid. Law What By-Law is good what not and where it binds and where not 226 362. C. 1. C 1 Capias VVhere and by what Courts a Capias may be granted and where not p. 1. 186. C. 4. VVhere a Capias lyes and where not 222 223. 2. Case VVhere an action upon the Case lies for words and where not p. 5. C. 1. p. 6. C. 2. p. 11. C. 2. p. 17. C. 1. p. 22 23. p. 24 25 27. C. 3. p. 46. C. 3. 47. C. 1 2. 49. C. 2. p. 49 50. p. 58. C. 2. 59 60 63 64 65 66. 66. C. 2. 70. 70. C. 1. 75. C. 2. p. 91. C. 2. 100. VVhere an action on the Case lyes for words where not p. 112 113 115. C. 3. 118. C. 1. 127. C. 2. p. 130. C. 1. p. 135. C. 2. 142. C. 1. 150. C. 3. 159. C. 1. 169. 170 176. 177 183 184. 194. C. 2. 199 200 206. C. 2. 210. C. 1. 213. C. 1. 217. C. 1. 219 C. 1. 220. C. 1. 211. C. 1. 2. 227. C. 3. 229 C. 1. 231. C. 1. 231. C. 3. 35. C. 1. 245. C. 1 2. 247. C. 1. 262. C. 2. 273. C. 4. 274. C. 1. 274 C. 12. 283. C. 2. 295. C. 3 298. C. 2. 299. C. 1. 304 305 322 323 325. C. 1. 326. C. 1. 328. C. 1. 335. C. 2. 338. C. 1. 350 351 352. C. 1. 363 364. 379. C. 1. 387. C. 3. 388 389 382. C. 1. 394. C. 1. C 2. 400. C. 4. 414. C. 2. 420. C. 2. 422. C. 1. 424. C. 3. 425. C. 3. 426. C. 2. 429. C. 2. 435. C. 2. 436 437 451. C. 1. 455. C. 1. 460. C. 2. VVhere an action upon the case lies upon a promise and where not p. 6. C. 1. p. 3. p. 53. C. 2. p. 55 57. C. 1. p. 62 63 131. C. 1. 141 C. 1. 143 142 158. C. 1. 162. C. 1. 203. C. 1. 213. C. 1. 243 248. C. 1. 256 257. 262. C. 3. 264. C. 2. 273. C. 3. 278. C. 1. 280. C. 2. 295. C. 2 296. C. 1. 297 298 303 304 305 395. 396 400. C. 1. 405. C. 2. 411 412 416. C. 2. 419. C. 2. 420. C. 3. 440. C. 2. 463. C. 2. 472 473. 841. C. 1. Where an action upon the case lies in nature of a conspiracy where not p. 10 11. 157 c. 2. 372 c. 3. 408. c. 1. 424 c. 2. 432. c. 1. Where an action of Trespass upon the Case lyes and where not 99 100 131 862. C. 3. 164. C. 3. 169 170 182. C. 201 202 212 214 215 216. C. 1. 227. C. 4. 230. C. 1. 238. C. 1. 244. C. 1. 310. C. 1. 335. C. 1. 342. C. 1. 343. C. 4. 348 349 353 370. C. 3 4. 371. C. 4. 378. C. 2. 398 399 421. C. 1. 426. C. 1. 427. C. 1. 431. C. 2. 451. C. 6. 463. C. 2. 472. C. 2. 474. C. 1. What is a good Plea in bar to an action upon the Case and what not 245. C. 2. 247. C. 2. Where an action on the Case lies upon an Indebital as Assumpsit and where not 160 161. 3 Certificate VVhat is a good Certificate what not 130. C. 3. 131. C. 2. 137 138 175 176 183 292. C. 2. 368. C. 4. 4. Certainty and Incertainty 5 Certiorari In what cases a Certiorari lies and in what not p. 9. C. 2. p. 14. C. 3. 125 126 127. C. 3. 143. C. 1. 151. C. 2. 210 211. C. 2. 233. C. 1. 295. C. 1. 300. C. 2. 328. C. 3. 351. C. 2. 352. C. 2. 356. C. 2. 364. C. 1. 371. C. 1. 454. C. 2. VVhat Certiorari is well granted and what not 89. C. 1. 176 371. C. 1. 6 Cestuy que use 7. Champerty What shall be Champerty what not 93 94. 8 Challenge What is good cause of Challenge to a Jury or Juror 100. C. 2. 129. C. 3. 133. C. 3. How the array is to be challenged and how not 233. C. 3. How a challenge to the array is to be tryed and how not 464. C. 4. 9 Chancery What things the Chancery may compell to be done and what not p. 21. 10 Chapel and Church Of Churches and Chapels and their several natures and the reasons thereof p. 36 37. p. 51 52. 81 82 83. 212. C. 2. 11 Charges Where Jurors or other persons shall have their charges where not 138. C. 2. 137. 12 Chattels What things shall be said to be chattels and what not p. 86. C. 1. 13 Clergy Where the Clergy is to be granted and where not p. 86. C. 1. 364. C. 1. 372. C. 1. 467 468 c. In what things the Clergy are privileged in what not 161 162 168 169. Common and Commoner Who may claim Common and who not 436. C. 1. 14 Commission and Commissioners Of what things Commissioners of Sewers may take conusance of and of what not p. 59. C. 1. vid. Sewers What things Commissioners of Bankrupt may do and what not p. 62 288 289. 15 Commitment What is a good Commitment and what not p. 90. C. 3. 434. C. 1. 465 C. 1. vid. Imprisonment For what offences the Court will commit one and for what not 129. C. 2. 374. C. 1. 413. C. 2. 483. C. 1. 16 Common right see Right 17 Confession Where one ought to confess and avoid or traverse or where not 432. C. 4. 18 Condition VVhat shall be said a Condition and what not 294. VVhere a Condition shall be said to be entire and where not 316 317. Where a Condition is transferrable to another and where not 316 317. 19 Confession VVhat things one shall be said to have confessed by pleading and what not 334 343. C. 3. 20 Consent VVhat consent of parties is good to alter things and what not 233. C. 3. 277. 386. C. 5. 417. C. 5. â—â— Consideration What shall be a good consideration to ground a promise upon and what not vid. Promise 22 Conspiracy What shall be said to be a conspiracy and what not p. 57. C. 2. 23. Construction 24 Contempt What shall be said a contempt of the Court and what not p. 89 C. 1. p. 105 C. 1. 159 160. 241. 25 Continuance vid. Discontinuance Where Processes shall be said to be well continued and where not 111 C. 1. 328 329. Where continuances are to be pleaded and where not 373 C. 2. 401 402. 26 Contract 27 Conviction What shall be said a good conviction what not p. 12 C. 1. 28 Copyhold and Copyholder What shall be a good surrender of a Copy-hold what not p. 107 C. 1. 145 146. 256 257 273. C. 1. 450 C. 2. By what Acts a Copyhold may be forfeited by what not 387 C. 2. What Acts a Copyholder may do and what not 380 C. 1. By what Acts a Copyhold-estate may be destroyed 450 C. 2. Who shall be said a Copyholder and who not 145 146. Of Copyholds entayled 450 C.
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
enough 2ly It doth not appear that there are divers Churches in New-Sarum where the Proclamation was made To the third exception the Proclamation is said to he made prout breve postulaâ— and that shall be supposed duly done and implies all requisite circumstances and he cannot make another return and it is impossible to be otherwaies To the fourth it is not necessary to retorn the place of the Summons and it is said that it was made secundum formam Statuti which supplies the rest And to this the Court said that the words secundum formam Statuti extend far And Roll Iustice said that Proclamaiton in one place was good in all Holhead of Councel with the Plaintiff in the Writ of Error proceeded and took these exceptions in the demand of the Dower 1. The demand is generally de rectoria which is not good Demand Rector for the incertainty of it for there may be a Rector of a College of a Province of a Bishoprick as well as of a Parish-Church and therefore it ought to have been de Rectoria Ecclesiae parochialis de c. 12 H. 4. f. â—9 pl. 1. 2ly The demand decimarum is too general and not good and it ought to have been decimarum granorum soeni c. for the demand de omnimodis decimis quibuscunque is too general 11 Rep. Herberts case 1. To these exceptions Hales answered that a demand in a Writ of Dower need not to be so exact as in other original Writs for original Writs are not alterable but ought to answer the forms in the Register To the second he said that rectoria shall be intended the Rectory of a Church and the Statute extends not to this besides the place of the Rectory is described which makes it certain enough To the third it is not necessary to express the Tithes particularly and the demand being of the Rectory it compriseth all the Tithes also the demand is de omnimodis decimis which is a general demand and compriseth all and is not de decimis only for that might be incertain Holhead The demand is de rectoria de omnimodis decimis which is a demand of one thing twice and that is not convenient for by this means the party may recover dammages twice and the Court will be also inveagled by this means and it matters not though we have not pleaded to this for the Court ought to take notice of it Notice because it is in the original Writ Next there is no form in the Count for cum pertinentiis is informal for it refers to the Parish and not to the Mannour 27 E. 3. f. 86. Pl. 3. Haleâ— This is but a variance in form and is not material and also it shall be intended to refer to the Mannour and not to the Parish Holhead The demand is not warranted by the Writ for the Vill and Parish are not named in the Writ but are named in the demand 11 Rep. Arondels case Hales The demand is not de rectoria in Tymsbury but de Tymsbury and is the denomination of the thing demanded Tithes Parissi and not of the Vill where it lyes Holhead It is not said where the Tithes extend and they may extend to divers Vills as a Parish may 19 E. 3. f. 9. Hales Here is one demand and it includes all the Tithes Roll Iustice You have demanded the Rectory in Tymber and not the Rectory of Tymber and by the grant of ones Mannour in Dale no more of it passeth than what doth lye in Dale and here it shall be intended so much of the Tithes as are in Tymber Holhead Here is a demand of Dower of such things whereof Dower lyes not viz. of a quarry of Stones and it appears not that the Quarry was open in the life of her Husband and if it were yet it is improper to demand it by the name of a Quarry Hales the word Quarry is a good word well-known what it means for Quarrera is an old wel-known Latine word for it Dower and she is as well dowable of it as of a Mine of Coles and it shall be intended to be open because she demands it by that name of a Quarry Holhead The demand of the Dower is also of a Hundred of which a Woman is not dowable because it is an entire thing and cannot be divided and the demand should have been de tertia parte proficuorum hundredi To this Roll Iustice answered then by your reason she shall never keep a Court. Hales It is well enough demanded for a demand shall be of the thing it self and not of the profits of it for the profits were not in the Husband but he was seised of the Hundred and the profits are a thing incertain Holhead The execution of the Habere facias fesinam is not well executed for by it two third parts are assigned for Dower and that is more than the demand Hales That is but a repetition of the thing demanded Holhead A thing not demanded at all is assigned for Dower viz. view of Frank pledge Hales That is but an incident to another thing that is demanded viz. the Hundred and by the demand of the Hundred the view of Frank-pledge is demanded and all other incidents to the Hundred Holhead Here is an assignment also of all tenures and she cannot have Homage because she is a Woman Hales She shall have all tenures which she is capable of and so all shall be understood in this place and no other she shall have Holhead The Iudgement is also if 15 Copiholds Tenements which lately were Copiholds Roll Iustice This is good enough and what loss have you by it Holhead The Assignment is also of the 3d. part de Copicia de Structuris and other words there are which are also incertain And there is error in the assignment of dammages for the dammages are assigned ultra valorem terrae which is against the Statute Roll Iustice Dammages Iudgement the Statute is an addition of the value and dammages for the Iudgement is perfect without returning the Writ of the dammages and so hath been adjudged in the Common pleas Holhead Here is an ill suggestion of the Feme for the suggesteth that her Husband dyed seised in fee of all the Lands out of which she demands her Dower and that is not true for he dyed seised of part of them in tayl To this the Court said that is not material if he dyed so seised that she ought to have Dower Holhead Dammages are given ultra valorem which I conceive is not good Roll Iustice It is well enough for dammages are given and the value by the Statute Holhead The retorn of the Elegit is not good Hales That is another Record and appears not now in the Court Roll Iustice The Elegit hath no reference to the former Record Holhead There is one error in fact and that is confessed by your joyning in demurrer Doubleness Roll
Lands he hath 40 s. a year in Lands at least and more and therefore it is a better Iury and more sufficient and by this the verdict shall not be vitiated though the Venire be not quorum quilibet habet 40 s. per annum ad minus as the Statute directs and he cited 21 Iac. Philpot and Fielders Case to be so adjudged and he said that Lands in the hands of a Trustee may be extended for the Kings debt Extent but that he did not conceive how the King can have Copyhold-lands that are in trust for an Alien Seisuie Bacon Iustice The Commissioners that found this inquisition for the King had no power by their Commission to seize the Lands into the Kings hands but only to enquire what Lands the Alien had The Court ordered that cause should be shewn Tuesday following why the party shall not be restored to his Lands which were seised into the Kings hands by vertue of the Inquisition Postea Hill 23 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Action upon the Case Error upon a Iudgement in an Action up-the Case Incertainty Tryal upon an Assumpsit brought by two at Maydston in Kent and the Error assigned was that the Plaintifs in their Declaration do say unde dixerunt quod deteriorati sunt c. whereas it should be unde deteriorati sunt and not dixerunt c. for that is positive and the other not for they may say they are damnified and be not and there can be no tryal upon such uncertain words Roll Iustice said the words are not well laid yet if there were other words sufficient to expresse the dammage the Plaintiff had received it would be good enough but these words here govern the whole sentence Therefore let the Defendant in the Writ of Error consider how he can make the Declaration good The King against Savage Hill 23 Car. Banc. Reg. ONe Savage was arraigned in this Court upon an Endictment of Felony For quashing an Endictment for Felony for killing of a Woman within the Verge The truth of the Case was he beat and wounded the Woman at Lesne Abby in Kent which is within the Verge but the Woman dyed at Sevenock in Kent which is out of the Verge The Prisoner prayed the Court he might have Walker of the Inner-Temple assigned him for Councel for matter in Law which the Court granted Walker for the Prisoner prays the Endictment may be read which was done accordingly Whereupon he took these exceptions to it 1. That the Endictment doth not shew upon what part of the body particularly the Woman was wounded but it saith only generally that it was upon the hinder parts of her Body 2ly It sayes the Woman dyed de diversis plagis but it doth not shew of what length and breadth the wounds were as it ought to do nor doth it say of which of the wounds she dyed and so it is uncertain Incertainty and cannot be known whether the Wounds were mortal or no. 3ly By the Statute de Articulis super Chartas in this Case where the party was wounded within the Verge and dyed without the Verge the Coroner of the Verge and of the County ought to joyn in taking the Iuquisition super visum Corporis Inquisition which is not here done but the Inquisition is taken by the Coroner of the Verge only Bacon Iustice said the party is said to be slain where he dies not where he was wounded The Court ordered the Prisoner to appear a wéek after and in the mean time to give notice to the Kings Councel of the Exceptions taken to the Endictment and know whether they will maintain the Endictment Bail the same Term the Endictment was adjudged not good and the party was bayled Thyn against Thyn Hill 23 Car. Banc. Reg. Hill 22 Car. rot 1638. DAme Katherine Thyn brings a Writ of Dower in the Common-pleas against Sir Iames Thyn and hath a Verdict and a Iudgement Error in a Writ of Error Retorn the Defendant brings a Writ of Error to reverse this Iudgement in this Court and assigns for Error 1. In the Retorn made by the Sheriff for he doth not say that the Proclamation was made at the Church of the Town where the Summons was made Summons and a Summons upon any one part of the Land as hath béen objected on the other side is not good neither by the words nor the intent of the Statute for then the words in the Statute should be surplusage and idle that particularly directs how it should be And as to the Objection Fiction of Law Statute That a Summons upon one part of the Land is good in fiction of Law for the rest of the Land I answer That this is not so where the Statute directs the Summons and the words secundum formam Statuti cannot help where the Statute is not shewed to be pursued and so saith Dyer That substantial words ought to be mentioned Hill 24 Iac. Hâ—b Pl 179. Allen and Walkers Case 2ly Demand There is Error in the Demand of the Dower for the certainty of the Tithes demanded ought to appear and it doth not so here 11 Rep. Harpers Case f. 25. And for that which is said in answer unto this That a Demand of Dower is different from other Demands I agrée it to be true 8. H. 6. 3. Yet the things demanded in Dower must be certainly demanded 11 H. 7. f. 25. as it is in an Assise for an Assise de uno tenemento is not good for the incertainty Assise 4 E. 2. Fitzh Assise 45 1. Estovers demanded ought to be shewed particularly so is it of a Corrody 11 E. 3. Fitzh Dower 85. Dyer f. 84. 7 E. 6. Pasc 5 Iac. the Countess of Oxfords Case and whereas there hath this difference been taken betwéen a Demand of Tithes in gross and of Tithes appendant and that Tithes in gross must be particularly demanded but it is not necessary to demand Tithes appendat particularly I answer This is not so for their appendancy doth not make them not to be demanded particularly no more than if they were in gross 18 E. 2. Asise 377. A Corrody must be particularly demanded and all the Presidents prove it and it was so held Pasc 8 Car. rot 271. in Bruer and Drakes case in a writ of Error in this Court upon a judgement given in Dower in the Common-pleas A 2d exception to the Demand of the Dower is this the Writ of Dower is de manerio de Imber and the Demand is of Dower in parochia de Imber and so it is larger than the Writ Parish for a Parish may comprehend many Vills Stat. 1 H. 5. C. 5. 22 E. 4. C. 2. Mich. 34 Eliz. rot 1537. Brad and Bishops Case in the Exchequer Pasc 38 Eliz. Bedel and Scarborows Case in an Ejectione firmae in this Court It is true that generally a
might have pleaded this in the Admiral Court Hill of Councel for the Prohibition said it is not material what the parties have done in the Common-pleas for this Court is not bound by it Roll Iustice If the matter of your surmise here be tryed already in the Common-pleas why should you move here upon the same surmise Surmise Arbitrary Conclusion But it is not arbitrary to grant a Prohibition or not to grant it if there be cause to grant it and the Tryal in the Common-pleas is no conclusion to us and if it be mischievous as is objected Prohibition to grant a Prohibition after a Consultation granted the Parliament may make a Law to prevent that mischief for as the Law now is it may be done Yet we will advise Gaudy aginst Ingham Hill 23 Car. Banc. Reg. IVdgement was given against an Administrator in an Action of Debt brought against him Error upon a Iudgement against an administrator Iudgement in the Common pleas upon fully administred pleaded and a writ of Error was here brought to reverse the Iudgement The Error assigned was that Iudgement was given for the whole Debt whereas the verdict found that the Defendant had assets only to discharge a part of it To this the Court said if it be found he have any assets Iudgement must be given against him for the whole debt upon his false plea but if he have no assets it is otherwise Allen against Reeve Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 88. ALlen brings an Action of Covenant against Reeve Arrest of Iudgement in an Action of Covenant and his wife upon a lease expired made of certain houses by deed unto the wife dum sola suit wherein was a Covenant to keep the houses in repair during the term for breach of this Covenant is the Action brought and declares as to one of the houses that it was burnt by negligence The Defendants plead a special plea to this effect That the house which was burnt was not burnt by negligence In arrest of Iudgement nor with Common fire as the Plaintiff hath declared and as to the rest they plead the general issue that they were in good repair at the expiration of the term the Plaintiff hath a verdict Nicholes of Councel with the Plaintiff said it conteins a negative preignans for there are two matters offred in issue one that the house was not burned by common fire Negative preignans Demurrer 2ly That it was not burned by the negligence of the party Roll Iustice If it be a negative preignans as you say it is you ought to have demurred unto it as to a double plea. But let us see the book and stay in the mean time Hobson against Heywood Hill 23 Car. Banc. Reg. Trin. rot 791. HObson brings a writ of Error in this Court to reverse a Iuhgement given against him at Bristow in an Action of Debt for rent Error to reverse a Judgement in Bristow in an action of Debt Error and assigns for errors that the sum demanded to be due for rent was in figures and not in words as it ought to be 2ly It is said that the Iury Assideint damna for Assident damna The Court held they were both material exceptions and reversed the Iudgement except cause should be shewn to the contrary Saturday following Chambers against Floyd Hill 23 Car. Banc. Reg. VPon a rule on the Crown side to shew cause why an Attatchment should not issue out against two Iustices of peace for not allowing a certiorari directed to them out of this Court to remove an endictment of forceible entry taken at a private Sessions before them Cause against issuing of an attatchment The Councel for the Iustices urged that they had not contemned the Processe of this Court as is surmised for the certiorari ought to have been delivered in open Sessions of the peace and there allowed Allowance but this was delivered at a privat Sessions and so they were not to allow it 2ly The party who procures the certiorari ought according to the Statute to put in security Certiorari at the delivery thereof to prosecute or else it is not to be allowed but that was not done here and therefore they were not bound to allow it And the certiorari is to remove an Endictment of forcible entry but the retorn is that it was a peaceable entry and a forcible deteyner Retorn so that there being no such Endictment before them as the certiorari mentions they could not make a retorn according to the writ and therefore it is no contempt in the Iustices not to make a return The Court answered Contempt that it is the usual course of the Court to make certioraries in this form and therefore this is no excuse The Councel against the Iustices urged that this case is within the Statute though it were at a privat Sessions of the peace and therefore the Iustices are in contempt Roll Iustice said I conceive that this is casus omissus not provided for by the Statute and if so then are they not in contempt Casus omissus and if some Iustices take an Endictment of forcible entry other Iustices cannot give restitution upon this Endictment Bacon Iustice Restitution The Statute is a remedial Law and made for the ease of the subject and ought not to be construed strictly And said Construction that a privat Sessions is a Sessions but security ought to be put in at the quarter Sessions for it shall be intended that all the Iustices of the County are there Roll Iustice said Security that a privat Sessions ought to take security and the Endictment ought to be retorned there but the certiorari is not good for it mentions not the title of the Act yet the generall practice of the Court seems to warrant it as it is The Court ordered the party to have restitution and the contempt to be spared by consent of partyes if cause not shewn to the contrary before the end of the Term. Hill 23 Car. Banc. Reg. THe Court was moved upon an Assidavit for a prohibition to the Court at Doncaster For a prohibition to the court at Doncaster Prohibition Attatchment and for an attatchment against the Maior for refusing to allow of a forein plea tendred by the Defendant in an Action of Debt brought against him for rent for lands that lye out of the jurisdiction of the Court and for proceeding against him notwithstanding the tender of the plea. The prohibition and attatchment were granted if cause not shewn to the contrary before the end of the Term. David against Lyster Hill 23 Car. Banc. Reg. THe Court was moved by the Plaintiff that the Defendant might be ordered to plead an issuable plea For the Defendant to plead an issuable plea. which he had not done for the Action is an Action of ejectione firmae in which the Plaintiff hath
servitium amisit The Defendant pleads not guilty and thereupon is an Issue joyned and a verdict for the Plaintiff The Defendant moves in an arrest of Iudgement and for cause shews that the Plaintiff hath not set forth how the party was his Servant whether as an Apprentise or by retainer as he ought to have done But the Court said that the Record imiplies that he was his Servant at the time when the Trespass was done and that is enough and this is the usual form of declaring in this Action in the Common-pleas and in this Court also and so many of the Councel at the Bar affirmed and therefore let the Plaintiff take his Iudgement The King against Holland Pasc 24 Car Banc. Reg. HAles offered to the Court these reasons why Iudgement should not be given here in this Case betwéen the King and Holland formerly spoken to To stay Iudgment upon a Memorandum of a Record out of the Chancery Iudgement 1. That the Record is not here in this Court but only an extract of the Record out of the Record which is in Chancery and therefore judgement cannot be given here for a judgement must be given upon the Record it self 2ly It would be inconvenient if it should be otherwise for the Chancery is Iudge of the Inquisition and so there may be judgement one way in Chancery and another way here if the Record be not removed hither And there is difference where a transcript of a Record is removed out of a Court which cannot proceed upon the Record it self and where it is a transcript of a Record Transcript upon which Record the Court may proceed as it is in our Case 39 H. 6. 6. 14 E. 4. 1. 7. 3ly It appears not to this Court how the Commission and Inquisition are executed whether well or not and therefore it cannot judge of it Maynard on the other side prayes that judgement may be given here upon the memorandum of the Record sent hither out of the Chancery for these reasons 1. Every Court ought to give judgement on the one side or other therefore if the King may have judgement here the party may also have judgement 2ly The Record is here in this Court virtually by sending of the Memorandum of it hither and that is enough to give Iudgement upon 3ly The Chancery and this Court as to the giving of judgement here are as it were one Court 24 E. 3. f. 77. 4ly There is a ground for judgement to be given here and it cannot be given elsewhere for an Award in Chancery is no Iudgement Award and so there cannot be two several Iudgements one in Chancery and another here as Hales supposeth and in Lathams case the Record was removed as it is here and Iudgement given upon it in this Court. 5ly The Chancery is not to be Iudge for the Tranverse was there and the cause removed hither and we cannot go back thither again for if we should do so we should have Iudgement in no Court If it had been upon a Demurrer in Chancery then there might have been a Iudgement there but not now the Cause is removed by Traverse and a Patent shall not be corrected by the Enrolment but the Enrollment by the Patent under Seal Hales on the other side said That it is the Record of the plea that is transmitted out of the Chancery hither but not the Record of the Inquisition or Commission upon which it is found and how then can there be any Iudgement Roll Iustice said That the Amoveas manum is but a consequence of the judgement Amoveas manum and not the Iudgement it self and we may give Iudgement without the Inquisition against the King And the Record is transmitted hither to determine whether the King or the party hath right and the Chancery cannot intermeddle for by this means the Courts will clash which would be inconvenient Bacon Iustice spoke to the same effect Roll Iustice added this If an Office be found to entitle the King in the Chancery and it be transmitted hither and it appears to this Court that the office is not good shall not we give Iudgement against the King certainly we shall But the Court would advise and desired to hear the Kings Councel what they could say for the King Pasc 24 Car. Banc. Reg. AN Action of Trespass was brought for taking away divers parcels of Houshold stuff and upon non Culp pleaded the Plaintiff had a verdict Arrest of Iudgement in Trespass for taking away Goods The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good because divers words in it were insensible as 1. The Plaintiff declares for taking away unum Lenat Anglice a Mat whereas Lenat is no word in any Language to signifie any thing and therefore the Anglice cannot help it To this the Court answered That it is all one as if it were left out of the Declaration because it signifies nothing in it Dammages and so there is no dammages given for that thing which it should signifie 2ly He declares for taking away tria suspendia Anglice Pot-hooks or Hakes But the Court held this good enough 3ly He declares for taking away unum Adustum ferreum which are two Adjectives and signifie nothing To this the Court said if they signifie nothing then no dammages are given for it and therefore let the Plaintiff take his Iudgement Pasc 24 Car. Banc. Reg. VPon reading of the retorn of Collonel Tichborne Leiutenant of the Tower of London upon an habeas corpus directed to him For an alias habeas corpus with pain on the behalf of John Lilborn committed by order of both houses of Parliament for his contempt to them Cook of Councell with the Prisoner moved for an Alias habeas corpus with a pain because the Lieutenant had only retorned the Writ Alia but not brought the body of the Prisoner Bacon Iustice If there be sufficient matter expressed in the retorn to detein the Prisoner to what purpose should we grant an Alias Retorn therefore if the retorn be insufficient move your matter against it But Roll Iustice said the Lieutenant ought to make his retorn either against the jurisdiction of this Court or else he must bring the body of the Prisoner hither and it is in our power to set a fine upon him Fine for making an insufficient retorn Therefore the Court ordered that he should amend his retorn or else they would grant an Alias with a pain Hocker against Lamb. 24 Car. Banc. Reg. Trin. 23 ar rot 1592. HOcker brought a Writ of Error in this Court against Lamb to reverse a Iudgement given against him Error to reverse a Iudgment for error in the venire Licu câ—nus Hundred VVard in the Court at Colchester in Essex and assigns for Error 1. That the venire is awarded larger than the Declaration To this Roll Iustice said the Ward within Colchester
said by the Councel on the other side that this matter ought not to be assigned for Error Error because it is against the Record on the other side it was inssisted upon that he may assign it for Error Roll Iustice said it may be assigned for Error but it is a Question how it shall be tryed for it is not upon a Demurrer and so the matter is not before us 11 Car. Smith and Smith And this cause ought not as it is to have been put into the Paper VVorsely against VVorsely Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 489. VVorsely brought an Action of Accompt against Worsely Demurrer upon a plea in an action of Accompt Bar. The Defendant pleads that the Plaintiff stands convicted upon the Statute made against Recusancy and demands Iudgement Si actio The Plaintiff demurs upon the Plea Wild of Councel with the Plaintiff said that this matter ought not to be pleaded in Bar of the Action but he ought to conclude only Iudgement if he shall be answered The Councel on the other side desired time to speak in it Roll Iustice Shew cause Monday next why Iudgement shall not be given against you Trin. 24 Car. Banc. Reg. THe Court was moved for the quashing of an Endictment upon the Statute of 8 Hen. 6. against forcible entries For quashing an Endictment County Liberty The exception taken against it was that the Endictment doth not shew in what County the forcible Entry was upon which the Endictment was grounded Roll Iustice answered if it be within a Liberty it is not necessary Trin. 24 Car. Banc. Reg. THe Court was moved to quash an endictment of Perjury against Stephen Burton The Exceptions taken to the Endictmment were these For quashing an Endictment of perjury 1. The Endictment is said to be taken in plena Sessione pacis and it doth not appear to be the Quarter Sessions as by the Statute it ought 2ly It is said that the Defendant dixit c. and doth not shew where or in what Plea he gave the evidence wherein the perjury was committed 3ly It doth not say that the Defendant gave the evidence corruptive as it ought to do 4ly The prejudice is not said to be ad grave damnum of any body and so no body being prejudiced by it none ought to be endicted for it Roll Iustice said it is not enough to say the Endictment was taken in plena Cessione generally but it must appear in what Sessions it was Therefore let cause be shewn why it should not be quashed It was afterwards quashed because it did not shew that any of the Iustices before whom it was taken were of the Quorum and not for the other exceptions Howard Trin. 24 Car. Banc. Reg. A Iudgement was given in an Action of Debt in this Court Error in the Exchequer-Chamber to reverse a judgement given in Debin this Court Bar. The Defendant brings a Writ of Error in the Chequer Chamber to reverse this Iudgement and removes the Record thither The Plaintiff brings an Action of Debt in this Court upon the Iudgement given here The Defendant pleads in bar of this Action Nul tiel record and upon this the Plaintiff demurs and the Court after motions and arguments on both sides was by the Plaintiffs Councel moved for Iudgement for him upon the Demurrer But Roll Iustice answered Iudgement If you will have a Curia advisare vult you shall have it if not take your course for the Record is not here before us Therfore we can give no Iudgement The King against Trigg Trin. 24 Car. Banc. Reg. THe Court was moved to quash a Presentment against Trigg for not going before a Iustice of Peace to take the Oath of an Headborow For quashing an Endictment for not being sworn a Headborow to which office he was chosen at a Léet The Exceptions taken against it were 1. That it doth not appear that any notice was given to him to go before the Iustice â—ly it appears not that the Iustice had authority to administer the Oath For the first exception the Presentment was quashed Collins against Page Trin. 24 Car. Banc. Reg. Mich. 23 Car. to 269. A Plaint was entred in the Court of Plymouth against Page for threescore pounds Error to reverse a judgment in Debt upon a Custom in Plymouth and a pone taken out against his Goods and upon this a default and thereupon another pone issued out to attatch the Defendants Goods and the Defendant at three other Courts successively makes default and upon the fourth default Iudgement was given against him Whereupon the Defendant brings a Writ of Error in this Court to reverse the Iudgement â—and assigns for Error that here is a Iudgement given before any appearance which cannot be but in this Case the Goods attatched are only forfeited for the default made by the Defendants non-apparance Forfeiture The Councel on the other side desired time to answer the exception Roll Iustice The Custom upon which this judgement is given is not reasonable Custom Therefore if you answer not the exception Tuesday next the Iudgement shall be reversed Skete against Clay Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 180. CLay brought an Action of Trespass against Skete for taking away his goods and had a verdict and a Iudgement in the Common Pleas. Error to reverse a Iudgement in Trespass Declaration The Defendant brought a writ of Error to reverse this judgement and the Errors assigned were to the Declaration because it had not proper latine words to expresse the goods for 1. it is said that the Plaintiff took away decem Velamins Anglice Coifes whereas Velamina signifies coverings generally 2. Pilum is used for Pileum in English a Cap. 3. Decem Colores Anglice Neckbands 4. Cruralia Anglice Garters 5. He declares de uno instrumento Anglice a Plate for a Iack. And 6ly Pro uno operimento Anglice a Rayl But Roll Iustice said We must not be too curious to expresse all things in Latin words in all Cases for it cannot be done Description and therefore a description with an Anglice must serve and so it may here therefore let the Plaintif have his Iudgement Aylet against Oats Trin. 24 Car. Banc. Reg. THis Case was moved again Error to reverse a judgement entire good in part and ill to other part and upon view of the Book Roll Iustice held that the Iudgement was entire and ought to be reversed for the whole although it be good in some part of it and he cited Trin. 14 Car. Scudamore and Scudamores Case 8 Car. Gritewel Morefields Case Trin. 11 Car. Eltonhead and Deerhams Case and Trin. 7. Iac. rot 566. Bird and Ormes case and 5. Rep. Specots Case and 13 Car. Dye and Atkins Case and upon these authorities the judgement was reversed Sir Charls Coot against Plunket Trin. 24 Car. Banc. Reg. THe Court was moved on the
Feme being a Feme Covert could have no Corn of her own for it was her Husbands Corn and so there could be no stealing of her Corn. But the Court answered that in common intendment the Corn is hers and her Husbands Corn though in legal construction it be not so and the Scandal is great although it appear that the words were spoken by a Feme covert Therefore let the plaintiff take his Iudgement except cause be shewn to the contrary Iudgement was given the same Term because the last words were held to be accumulative Mich. 24 Car. Banc. Reg. THe Clark of the Errors in the Common-pleas attended here upon a rule of this Court Clark of Court ought â—oâ— to move the Court. Whereupon one of the Clarks of the Court gave notice of it to the Court and prayed he might be heard But the Court answered that Councel ought to move it and not be The King against Doctor Trigg THe Court was moved for Doctor Trigg to estreate the Fine into the Exchequer which was set upon him by the Court upon his conviction upon an informaiton preferred against him upon the Statute for practising Physick in London without a licence from the College of Physicians For the estreating of a Fine Hales of Councel with the College of Physicians moves it may not be estreated for it is not necessary and here the Iudgement is not only for the King but it is tam pro rege quam pro c. Fine Estreat and so part of the Fine doth belong to the Subject and for that part the Prosecutor may have a privy Seal here to recover it Estreat but if it be estreated into the Exchequer be cannot there have it and so he shall lose his reward and therefore he desired the Fine might be respited But the Court answered we cannot respite the Kings part nor the other part for there is an execution out for the whole Fine which cannot be stayed Heyford against Hobson Mich. 24 Car. Banc. Reg. HEyford brought an Action of Trover and Conversion against Hobson in the Common-pleas for taking away and converting of divers of his Goods and Chattels particularly named Arrest of judgment in Trover and Conversion and had a verdict The Defendant moved in arrest of Iudgement that the Declaration was incertain for amongst other things the Plaintiff in his Declaration declares for the taking de duobus castoribus Anglice Hats whereas castor is not a proper word for a Hat 2ly de uno servitio argenteo Anglice one silver Salt and there is no such word for a Salt but there is another proper Latin word for it viz. salinarium 3ly De duobus catenis Anglice two silver Dishes which is no word for a Dish much less a silver Dish Roll Iustice said one may describe a thing in a Declaration Declaration if there be not a proper word to express it and if it be so described that the Iury may know what is meant by it it is well enough But let the Iudgement be here be stayed for we will advise Wood against Clemence Mich. 24 Car. Banc. Reg. THis Case formerly viz. this Term moved and spoken to touching the validity of an Award made touching the fraight of a Ship Exceptions to an award was again moved and Exceptions taken to the Award 1. That the award is repugnant in it self And 2ly It is not final and so not good The Court answered if the Award be ill as of your own shewing it is then you have no cause of Action Iudgement Submission and so you cannot have Iudgement although the Defendants bar be not good and a submission made by one for himself and another is good to bind the party that submitted But move it again and we will advise in the mean time Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry after the party endicted had pleaded To quash an endictment of forcible entry and a verdict against him Roll Iustice We must not be so curious in the framing of Endictments as to quash them for every small fault and in this Case it was said by him that if one interrupt a long possession by force and the other regain it with undue means an Endictment lies not against him for this for this is but vim vi repellere and after a verdict and before Iudgement upon an Endictment of forcible entry Restitution the party ought not to move for restitution Banister against VVright Mich. 24 Car. Banc. Reg. IN a Tryal at the Bar between Banister and Wright in an Action upon the Statute of 2. Ed. 6. for not setting forth of Tithes Lands free from tithes It was said by the Court that Tithes which lye not within any Parish are due to the King and that Lands must be parcel of a Parish either by prescription or by Act of Parliament and that Lands lying within a Forest and in the hands of the King do not pay Tithes although they be within a Parish Tithes but if the Lands be dis aforested and be within a Parish they ought to pay Tithes for their not paying Tithes being in the hands of the King is but an immunity for that time only Mich. 24 Car. Banc. Reg. A Baker was presented in a Court Leet for selling Bread under weight Arrest of judgement in an action for a Fine set at a Court leet Fine Amercement Presentment and a Fine set upon him and an action brought against him for this Fine and a verdict given against him It was moved in arrest of Iudgement that the presentment upon which the Action was founded was not good and so there was no ground of Action and so there ought to be no Iudgment But Roll Iustice answered that the Action is for the Amercement which is a collateral thing and the presentment is not now to be called in question if it be only avoidable for some fault in it but it were otherwise if the presentment were utterly void But speak again to it at another time Mich. 24 Car. Banc. Reg. THe Court was moved for a Habeas Corpus for one committed at Norwitch for Treason in speaking words against the Queen For a Habeas corpus to remove a Prisoner committed for Treason Endictment Tryal because be could not be tryed there Roll Iustice answered he cannot be endicted here except the fact were done in Middlesex therefore advise with the Kings Councel and prefer a Bill of Endictment where the fact was and then you shall have a Writ ad delibrandum directed to the place where the fact was and this is at the Kings sute and the Sherif shall be allowed his charges upon his accompt or else the Iustices may try him by their Commission of oyer and terminer Smith and Hancock and others Mich. 24 Car. Banc. Reg. SMith brought an Action of Trespass against Hancock and others For a new tryal
a verdict and upon the Defendants motion the Iudgement was former y stayed The Plaintiff moves for Iudgement notwithstanding for that the words are actionable The Court said the words are scandalous and by them he is disgraced in his Trade Hales of Councel with the Defendant said that there were other words in the Declaration which are not actionable and yet dammages are given for both Dammages which ought not to be and therefore no Iudgement could be given The words said not to be actinable were these Have a care and do not trust him for he will run away and pay you nothing But the Court held that both the words taken together are actionable and ruled the Plaintiff to have his Iudgement for both the words if better matter be not shewed Nelson against Tompson Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 343. NElson brought an Action of Debt against Tompson upon an Obligation with a Condition to save the Plaintiff harmless Demurrer to a replication in Debt upon an Obligation The Defendant pleaded non damnificatus The Plaintiff replyed and shewed a breach on the Defendants part whereby he was damnified The Defendant demurs to the replication and for cause shews that the breach was assigned to be at Westminster Place and doth not shew in what County Westminster is The Court held that though Westminster be a City yet it ought to be shewed in what County it lyes because it is not a County of it self Therefore advise what you will do for the Action is fit to be discontinued Discontinuance Thyn against Thyn Mich. 24 Car. Banc. Reg. LAtch moved again in this case that the Summons doth not appear upon the retorn to be well made Whether a Summons well retorned for it is not said to be made at the Church-dore as the Statute directs To this nothing was answered But Bacon Iustice said the retorn was naught for another reason and so there is no Record before us to proceed upon in the Writ of Error the fault is this The Custos brevium ought to make the retorn here and it is mentioned to be made per unum deputatorum suorum Retorn whereas his Deputy had no authority to do it Therefore you had best to take a new Writ of Certiorari and certifie the same matter by it and this the Court may grant though it be very rare for if one will assign an Error in a Record and pray a Certificate and nothing be done upon it we cannot proceed Consider which way you can help this fault Tracye against Poole Mich. 24 Car. Banc. Reg. TRacye brought an Action upon the Case against Poole upon a promise Arrest of Iudgement in an action on the Case upon a promise and declares that Poole the Defendant in consideration of a mariage to be had between the Plaintiffs son and the Defendants daughter of setling so much Land upon him upon the mariage He did assume and promise that within such a time after the mariage had he and his Son should be bound per scriptum suum debita juris forma fiend unto the Plaintif for the payment for 3000 l. for a mariage portion assigns the breach that the Defendant his son did not become bound per scriptum suum Obligatorium for the payment of the 3000 l. and for this he brings his Action The Plaintiff had a verdict The Defendant in arest of Iudgment moves that the breach was not well assigned Breach for the Assumpsit was that the Defendant and his Son should be bound per scriptum suum debita juris forma fiend and the breach is that they did not give security per scriptum suum Obligatorium which agrees not with the Assumpsit for the Defendant might give security by a Iudgement which is not scriptum suum yet it is debita forma juris factum upon this the Iudgement was for that time stayed though then Bacon Iustice enclined that the breach was well assigned because in common construction it shall be intended that the Defendant assumed to give his own and his sons bond for security Hales of Councel with the Plaintiff at another day moved for Iudgement and held that the breach was well assigned for that it expresseth the substance of the promise though not the very words of it and this was held good 7 Car. in Michill and Cars case 2ly If the meaning of the promise be considered it will appear that the Defendant and his Son were to be bound by Obligation 6 Car. Courtny and Gavills Case and indeed the promise cannot be satisfied by any other way than by an Obligation for a Iudgment or a Statute will not do it for by them he is not said to be bound and though all this be admitted against me yet it is now after a verdict and the Iury have found the breach Maynard for the Defendant argued that the breach was not well assigned for the breach assigned tends to a personal engagement for paying the 3000 l. which is not so expressed in the promise but only a general security to be given for the monies and a recognisance and a judgement are not properly scriptum as in 9 Car. Goldsmith and Sydners Case and the Declaration doth not set forth the death of Sir Henry Poole by whom the security was to be given and so it cannot appear whether he had a convenient time to do it as he ought to have and he held that the Plaintiff was bound to do the first act viz. to tender the Obligation to the Defendant or else he is not bound to seal and deliver any Request and also he ought to make a particular request to him to seal and deliver it Hales replyed if a man plead a Statute it is true that he ought to say per scriptum suum Pleading but pleading ought to be more nice than common parlance 2ly The living of Sir Henry Poole is expressed and there appears time convenient between the promise and the time of his death for performing of it 3ly It is not necessary for us to tender a bond but the other ought to have done it at his own perill for it is to be done at his charge and not at ours Roll Chief Iustice held that Iudgement ought to be given for the Plaintiff and said that for the laying of the promise it is not necessary to pursue the very words of the promise but the substance so that there may appear to the Court that there is cause of Action 2ly He held that there is no variance in the substance for the intent of the parties is to be considered which was to have another act done by Sir Henry Poole and his Son per aliquod scriptum and not by a verbal promise and we are to consider if the breach assigned agree to this and he held that the promise will extend to a Iudgement or a recognisance for a Iudgement Statute or Recognisance
the tax by prescription and it is not necessary to shew in what place of the Poe-Dike the breach happened Roll chief Iustice said the prescription here is waived for you say that it was not an inevitable breach and so you are at the Common law and not upon a custom and then the tax ought to be equal and according to the number of the Acres and it is not so here And it appears not that the breach is within the Hundreds whence the Iury came and so they have no authority to enquire Hales said that there is a clause to help this for there is a power in the Commissioners to ease them that have wrong done to them Roll chief Iustice This will not help Tax for the tax ought to be well and equally laid according to the Statute viz. upon the number of the Acres and here it is laid upon the persons of the inhabitants Therefore make a new tax Archer against Holbidg Mich 1649. Banc. sup IN this case the Action being an Action brought upon the Statute of 1 R. 3. Cap. 3. and a verdict for the Plaintif Arrest of Iudgement in an action upon the Stat. of 1 R. 3. cap. 3. it was formerly moved in arrest of Iudgment that the Statute was misrecited whereupon it was ordered the Parliament Roll should be brought in Court which was now done and read and upon the reading it appeared that it was misrecited for the Statute was for suspition of felony and the Declaration was for felony Misrecital whereupon it being held by the Court to be misrecited in matter of substance whereupon the Action was grounded The Court ordered a nil capiat per billam Mich. 1649 Banc. super AN Indictment was found against one for a forcible entry The Defendant traverseth the Indictment For restitution upon an Indictment of forcible entry Restitution and enters his traverse pleads The Plaintif moved the Court upon a suggestion that there had been divers verdicts found for this land for the Plaintif that the Plaintif might have restitution But the Court would not grant restitution before the tryal because the Defendant had traversed and pleaded Mich. 1649 Banc. sup THe Court was moved to discharge the issues set upon the inhabitants of Bridgwater To discharge issues for not repairing the high way Quash for not repairing a High way and to quash the Indictment upon a Certificate that the way was repaired The Court answered that further process should be stayed and the issues discharged But we cannot discharge the Indictment if you have no exception to take against it Mich. 1649. Banc. sup THe Court was moved to quash an Indictment against a Baker for selling of bread under the Assise To quash an Indictment for selling bread under the Assise The exceptions were 1. That it doth not say what Assise whereas there be divers Assises of bread 2ly The Indictment doth not shew where he sold the bread not to whom Roll cheif Iustice said to the first exception It is good enough to say he sold the bread contra assisam although it say not what assise but upon the second exception the Indictment was quashed Earl Rivers against More Mich. 1649. Banc. sup THe Earl Rivers was taken by a Latitat and committed to the Marshalsea The Earl by his Councel pleaded his privilege of Peerage and prayed he might be set at large Privilege of Parliament pleased Roll chief Iustice asked How is the plea now amended for yesterday you pleaded in abatement of the writ and now you pray to be delidered upon a bare suggestion Wild of Councel with the Defendant held that a Capias doth now lye against an Earl for comes dicitur a Comitando-rege Capias cessante rege cessat comes And demurred to the plea for want of form Roll chief Iustice said That Earls and Barons are antient titles of the Realm But let him plead as he will stand to it and advise well of the plea before the Demurrer joyned for we can give leave to amend the plea. Amendment VVare against Chappell Mich. 1649. Banc. sup VVAre brought an Action of Debt for 500. against Chappel Demurrer to a plea in Covenant upon an Indenture of Covenants between them viz. That Ware should raise 500 Souldiers and bring them to such a port and that Chappel should find shipping and victuals for them to transport them to Gallicia and for not providing the shipping and victuals at the time appointed was the Action brought The Defendant pleaded that the Plaintif had not raised the Souldiers at that time and to this plea the Plaintif demurs Windham of Councel with the Plaintif held that the Defendant ought to have provided the shipping and victual against the time though the Souldiers were not raised for the not raising of the Souldiers can be only urged by way of mitigation of damages and not pleaded in discharge of the breach assigned Yard of Councel with the Defendant held the plea was good in barr of the Action for the Covenants of each part have relation one to the other and there is a condition precedent made by the words to find shipping for the Souldiers so that the Defendant was not to find shipping Precedent condition except the Plaintif raised the Souldiers neither is there any notice given us how many Souldiers he had raised Roll chief Iustice held that there was no condition precedent but that they are distinct and mutual covenants and that there may be several actions brought for them Notice and it is not necessary to give notice of the number of the men raised for the number is known to be 500. and the time for the shipping to be ready is also known by the Covenants and you have your remedy against him if he raise not the men as he hath against you for not providing the shipping Ierman and Nicholas Iustices held against Roll that there is a precedent condition Ask Iustice was of Roll the Chief Iustices opinion Nicholas changed his opinion and so judgment was given for the Plaintif except better matter were shewn Jenkinson against Porter Hill 1649. Banc. sup Pasch 1649. rot 237. THese Errors in the Record were assigned to reverse a judgement given in the Court at York in an Action of debt Error to reverse a Iudgement in debt 1. That the time of the Iudgement is in figures 2. The sum recovered is in figures 3ly Venire is not good for it is Venire facias duodecim c. which is not good with an c. in an inferiour Court 4ly It doth not appear that the cause of Action is infra jurisdictionem Curiae And for these errors the judgement was reversed nisi c. Weston against Plowden Hill 1649. Banc. sup Mich. 1649. rot 503. THis case formerly spoken to was again moved which was this in effect Plea in abatement after imparlance Weston brought an Action of debt against Plowden upon
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
it is too late to claim his privilege Nicholas in all points was against the privilege Roll chief Iustice asked what say you to them that have Declarations on the by against the Earl Declaration for certainly they are good whether he be rightly committed or not for they are not to examine his commitment and therefore surely it is now too late to speak in abatement of the Writ Nayler against Ash Trin. 1050. Banc. sup Hill 23 Car. rot 611. NAyler brought an Action upon the Statute of 5 Eliz. against Ash in this Court for using the Trade of a Draper Arrest of judgement in â—n action upon the Statute of 5 El. or using the â—ade of a Draper and upon not guilty pleaded there was an issue joyned and a verdict found for the Plaintiff The Defendant moved in arrest of Iudgement and took two exceptions to the Plaintiffs Declaration 1. That the Statute doth not name the trade 2. That it being a popular Action it ought to have been brought in the County where the offence was committed and not in this Court. To the 1. Exception the Councell on the Plaintiffs side answered that the trade is comprised in the meaning of the Statute because it was a trade used at the time of the making of the Statute And to the second he answered that notwithstanding that the original processe issued out of this Court yet the tryal thereupon was in the County where the offence was done and the remedy that the Statute intends is made use of by the tryal being in the County where the offence was done Roll chief Iustice answered we directed you to search for presidents but you have not done it But I conceive the Statute is not satisfied for it says that the party shall not be compelled to appear out of the County and here he is compelled Appearance and this is not helped by the verdict to which the Court agreed Ernely against Allen. Trin. 1650. Banc. sup Mich. 1649. rot 351. ERnely brought an Action of Trover and conversion against Allen Error to reverse a judgement in a Trover and Conversion for taking away and converting to his own use divers of his goods and Chattels and amongst others he declares for the Trover and Conversion de ducentis ponderibus anglice waight medicamenti anglice drugs the Plaintiff had a verdict and a Iudgement and entire damages given for all the things laid in the Declaration The Defendant brought a Writ of error to reverse this Iudgement and assigns for Error that the words de ducentis ponderibus anglice waight medicamenti anglice drugs mentioned in the Declaration are incertain and so the damages being given intire for all it was not good Wadham Windham of Councell with the Plaintiff in the Writ of Error held the words to be incertain both in respect of quantity as also in respect of the quality or nature of the drugs for the word pondus may signifie a pound an ounce a dram a scruple or any other waight so that the waight cannot be known And the anglice waight is as incertain as the Latin word pound for waight may signifie as many different waights as the Latin word pondus may But it might have been otherwise if it had been anglice a stone or a weigh which were words certainly known what they mean but here a waight of drugs is not understood by the Drugsters And for the words they shall not be said to be void so that there are no damages given for them for the words are not like to the words duodecem duodena fili for they are adjective words but the words here are substantive and signifie by themselves And the word medicamentum also is as incertain as the other words and the anglice drugs doth not make it more certain for a drug is of as an incertain signification as the word medicamentum for all vegetable creatures and extractions out of them as also out of the living creatures made use of in physick either by themselves or else compounded one with another are called drugs and so he prayed the Iudgement might be reversed Maynard on the other side said that the words joyned with the anglice were certain enough for pondus signifies a waight which word is well and commonly known amongst the Drugsters how much it contains and he cited one Pennyes Case where decem ponderibus without an anglice was held good and one Wardners Case 21 Iac. in this Court Next for the word medicamentum being joyned with an anglice it is a good word to express drugs for of it self it is no Latin word to signifie any certain thing and here is no incertainty in the matter for if I may be brought to a certainty to the Iuries understanding and it is not necessary to express the matter like a Scholar or a Philosopher but only as they are known by tradesmen according to common understanding And in an Action brought amongst other things for a Library of Books which is more incertain Iudgement was given for the Plaintiff and Melbuis Case where the Declaration inter alia was pro decem ponderibus ferri ten tuns of Iron was agreed between the parties and Laurence and Turners Case Mich. 23. Iac. in Trover and Conversion pro tribus ponderibus lani was naught because it was without an anglice Serjeant Glin argued to the same effect on the same side Hales on the otherside said that notwithstanding the anglice the Declaration was incertain And it is not like the cases de tribus ponderibus Anglice weights of Chéese or Salt or stone weight of Chéese And the word medicamentum is as uncertain as the other word for it signifies divers species of things But Roll chief Iustice held that the Drugs were well expressed by the words in the Declaration in the vulgar and usual acceptation of the words Declaration and for the word weight it is also well known amongst Tradesmen Nicholas Iustice said we must not frame niceties to overthrow judgements and here is certainty enough in both the words to describe the thing and it is impossible to express them aptly and particularly Roll chief Iustice said the Declaration is two hundred weight and every one knows the meaning of a Hundred Ierman Iustice held the Declaration certain enough and cited a case where one declared pro decem doliis spirituum Anglice ten Hogsheads of Spirits and adjudged good Ask of the same opinion and so the judgement was affirmed nisi Dudeny against Collyer Trin. 1650. Banc. sup Hill 23 Car. rot 156. DUdeny brought a writ of Error against Collyer to reverse a judgement upon a nibil dicit given against him at the Court of Barnestable in an Action of debt brought upon an Obligation and assigns for Error Error to reverse a judgement upon a Nihil dicit in debt upon an Obligation that the Condition of the Bond was for the payment of money at Wotton Courtney which
refusing to appear and do his service at his Court he had forfeited his Copyhold and that therefore he did enter The Case was this The Defendant being Lord of the Manor and holding of his Court the Plaintif being Tenant and being in the Court and there being a question whether the Court were legally then held or no and being asked if he did appear or not he answered If it be a legal Court I do appear but if it be not a legal Court I do not appear The question was whether this be an appearance or such a refusal to appear whereby the Copyholder shall forfeit his Copyhold or not Latch held it was no appearance and that therefore the Copyhold was forfeited and cited 43 Ed. 3. f. 25. And he said though it be not expressed by the Defendant that the Plaintif was legally summoned to appear in Court it is not material seeing he was present in Court and did refuse being demanded to appear And that this was a sufficient contempt to make a forfeiture And he said that the Rejoynder is ill for it is dixit comparuit and he doth not answer to the fact alleged viz. That he denied to do his sute and service Wild on the other side said that it is no forfeiture for if the Court be well held then he doth appear as his words do plainly manifest and so there is no contempt and if the Court were not well held his not appearing shall not burt him for he is not required to do it 37 Eliz. Est and Hardinges case and 4 rep 27. Hobard and Hamonds case And besides this cannot be a voluntary contempt because he did appear conditionally and did not absolutely refuse And the Replication hath not entitled you to a forfeiture Besides it appears not here that the Court was legally summoned as it ought to do nor that there was any proclamation made for the holding of the Court nor any notice given to the Tenants of the holding of the Court 38 39 Eliz. Banc. Reg. Crisp and Dyer Roll chief Iustice This case hath depended long Forfeiture It is a hard thing to make a forfeiture of the Copyhold if there was a real controversie whether the Court was well held or not but if not and that the words were used only as a shift to avoid the Plaintifs sute and service it is a forfeiture for the words are like Iack in a Box and no body knows what to make of them Ierman Nicholas and Ask enclined that it was no forfeiture Adjourned to the next term Fielder against Tovy Hill 1650. Banc. sup Pasch 1650. rot 430. FIelder brought an action of debt upon a bond given to the Sherif by Tovy the Defendant to appear to the Plaintif in the Vpper Bench Demurrer to a Declaration uâ—on a Sherifs Bond. to an Action there brought against the Defendant The Defendant appears and demurs to the Declaration and shews for cause that the Bond upon which the Plaintif declares and the Declaration do not agree for the Plaintif declares pro quadragint libris and the Obligation mentions that the Defendant is bound in quadragent libris Divers cases were put to resemble this viz. Massam and Iollies case where sexigint was put for sexagint and yet held good and Waters case where septuagint was put for septingent And Downes and Hussies case 12 Car. Banc. Reg. where quingint duabus libris was used instead of quinquagint and yet held good because it might be an abreviation of quinquagint Ierman Iustice held the Declaration not good because the condition of the Obligation is to doe a collateral thing and so it cannot appear by it what the sum is in which the party is bound as it may where the condition is for the payment of money Roll chief Iustice held the Declaration not good Declaration because the Bond upon which it is grounded doth not warrant it and the meaning of the word cannot here be known and if the Condition were not collateral it would not help it Nicholas Iustice differed and said it would be hard to make it no Obligation for the mis-writing of a word and therefore it were good to search presidents for it as a considerable case Ask Iustice said the meaning is obscure and this makes the difficulty Adjourned Postea Wentworrh against Wentworth Hill 1650. Banc. sup Mich. 1650. rot 531. VVEntworth brought an Action of Debt against Wentworth upon an Obligation The Condition of it was this in effect That whereas the Defendant had granted an annuity to the Plaintif that the Defendant should make further assurance to the Plaintif for the enjoying thereof within one month when he should be thereunto required Vpon a special verdict the question was from what time the month should begin whether from the date of the Obligation or from the time of the request to be made Latch held it should begin from the request and not from the date of the Obligation because a month from that time is too small a time to do the thing required but if it shall be after the request it will be a proportionable time fit for the doing it Roll chief Iustice If there be an indifferent construction which may be taken two ways Interpretation we will take it that way which is most reasonable to make the Obligation stand in force and me seems the words here are plain namely that the assurance shall be made within a month after request not after the date of the Bond. Ierman Iustice to the same effect and said that although the request for further assurance were not within one month after the date of the bond yet the party may require it after the month is ended and within a month after such request the assurance is to be made and the Obligation shall be intended for the benefit of the Obligor Nicholas and Ask Iustices to the same effect so judgement ruled for the Plaintif Nisi c. Child against Guiat Hill 1650. Banc. sup Hill 1649. rot 153. IN an Action upon the Case upon an Assumpsit made by the Defendant to pay the Plaintiff a certain sum of money at a certain day Special verdict Q. whether a variance between the declaration and the promise on which it was granted Vpon a speciall verdict The question was whether there were a variance between the promise and the Declaration which question grew from the doubt whether the day of payment in the Assumpsit shall be intended according to the old stile or according to the new for if it were intended one way there was no variance if the other way there was a variance Hales held that there was no variance and though there should be yet he said the Plaintiff ought to have Iudgement because the time in this case is not material for the debt for the payment whereof the promise was made appears to be due upon an Accompt made between the parties which time is past and grows not due
of the first Intestate and after moved the Court that he might have a scire sacias to revive the Iudgment obteined by the former Administrator But the Court answered that he could not have it but must begin a new Action for the debt against the party Hill 1650. Banc. sup ONe was endicted for speaking these words against a Maior of a City To quash an endictment viz. you are a forsworn man and have broken your oath Hales moved to quash the endictment because the words have no reference to the Maior in respect of his office Ierman Iustice answered that the speaking of the words is a breach of the good behaviour and thought it fit the Defendant should plead to the endictment to which the Court at first enclined But afterwards ruled the other party to shew cause on Monday following why it should not be quashed The Countesse Rivers case Hil. 1650. Banc. sup THe Countesse Rivers was arresten by a bill of Midlesex and prayes in Court by her Councell that the Writ may abate Arguments touching privilege of peerage not to be arrested and the Precept and pleads her patent whereby she was created a Countesse and so pleads that she ought not to be arrested Latch of Councell against the Countesse argued that her patent was not good because it wants the words of investiture which are materiall words in the making of an Earl or Countesse for although the Act of investiture may be omitted because she is a woman and she cannot be girt with a sword yet she may be cloathed with a mantle as it is in the Institutes f. 16. and so was it in the case of Ann Bullein that was made Marchioness of Winchester by King Henry the 8. and of the Lady Finch made Countesse of Winchelsea by King Iames 6 Iac. Pasch 1. but in this Case there was a non obstante to dispence with the clause of investiture and in the viscount Barkleys case the patent whereby he was made Earl of Nottingham was adjudged naught for want of this clause 2ly It doth not appear by the patent that she is made an English Countess and then she hath no privilege 8 Rich. 2. Banc. Reg. 204. 11 E. 3. Banc. re 473. Neither is there any relation to the patent to any place of which she is made a Countess For although the patent be sealed with the English broad Seal this is not materiall for outlandish honours may be granted by the broad Seal of England 3ly The cause that she shall have privilege of an English Countesse is not material because she is not made an English Countess and she is no Countess to have privilege against the Common Law although she may it may be have her privilege in point of honour in the Marshalls Court and Heralds office because there is no publique good and service in making her a Countess 43 E 3.4 for being a woman she cannot be imployed in Arms or otherwise for the publique And an Embassador cannot have privileges granted him which do not concern him as an Embassador Dyer 60. and 1.1 H. 7. rot 24 C. Banc. The King cannot grant one to be exempted from arresting as it is in Cooks Mag. Char. Pasc 7 H. 8. rot 66 C. B. for the reason of that clause of Magna charta nulli negabimus Iusticiam The King cannot grant a Sanctuary to protect men from the arrests of his subjects 29 Ass 34. Keiw 190. And there is no instance to be given of a woman made a Countess that was ever frée and protected from arresting In the Statute of 20 H. 6. C. 9. for Earls wives and 21 H. 8. to qualifie Chaplains there is no notice taken of Countesses by creation but only of Countesses dowagers or Countesses by descent 6 rep 9. C. de Rutlands case and Ann Bullein was tryed per pares as she was Queen and not as she was Marchioness of Winchester And further the privileges of Earls and Countesses are now extinct for the cause of those privileges viz. the King and house of Lords are extinct and gone and the privilege of being free from arrests is a privilege executory and not executed Neither doth the sufficiency of their possessions only give them the privilege not to be arrested but their publique scrvices to the State which is the final cause of the privilege and the other was but a partiall cause and not the sole cause Reliefs were payed by Barons and Earls when Earldoms and Baronies were created but they are not now payed as they were then but according to the value of the possessions now and Amercements of Earls and Barons were equall The privileges of Earls and Barons was derived originally from Soldiers after it was derived to Bishops and great Counsellors and so it appears that they were privileged in respect of publique imployments and not by reason of their revenues All the Abbots and Priors had the privilege not to be arrested yet all were not Lords of the Parliament 21 E. 3. Mich. 59. Tres Mich. 7 H. 7. pl. 7.31 E. 3 process 54.27 H. 8.7.7 H. 6.11.29 E. 3. f. 30. Dyer 315. And a Iudgement without a Capiatur was in Trespass against a Bishop because the King was to have no fine 14 H. 7.21 But it is not so in a temporall peer where the King is to have a fine The privileges have severall expressions and the reasons for the privileges of the lay peerage is fully expressed in the Writs directed to them Regist 287.247 Rast Exigent Britton 88.10 H. 4.15 per Hull 14 H. 6.2 per Newton 39 E. 3. f. 35. Hill 14 Eliz. Dyer 314.3 H 6. f. 38.48 E. 3. f. 3.35 H. 6.46 for other privileges they are not allowable And now also all tenures as well as the House of Lords is taken away by the late Act and though her privilege do continue yet she hath not taken the right way to have it allowed for she ought to have brought a writ out of the Chancery to have it allowed and not to have done it dy a dilatory plea 8 H. 6.9 10. and the Patent cannot try whether she be a Countess or not 9 rep 31. Inst 16 b. 6 rep 63. And lastly mischief and misery will ensue to many if this privilege should be allowed and the very matter speaks for it self and so he prayed judgement for the Plaintif Hales of Councel on the other side prayed the privilege might be allowed and he followed Latch in the points of this Argument And first he said that the thing grounded by the Patent is only in creation of the dignity and there is no need here of investiture for if there were then a recital of it should be also necessary but because it needs not therefore it needs no recital of it in the Patent Seldens Tit. of honour f. 876.21 R. 2. There is a recital of an Investiture but there was no Investiture and so it was not material and a non obstante is to no
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
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
Testator meant Heir of his Lands and not the element of Ayre or a year as hath been strangely objected and would prove a ridiculous construction Osborns case 10. rep in Thyns case in this Court a demand of dower de capella although the word were of doubtfull construction in it self yet by the subject matter it was held to be made certain enough so the word Ayeare here shall receive construction according to the subject matter and the coupling of it also with the word Yexecutor which is also falsely written shews the Testators intent For answer to the main objection viz. that in 6 Car. there was a decree made in the Court of wards by advise of the Iudges that this was a void and sencelesse Will I say that that decree is not of so great waight as is a Iudgement given in a Court of judicature at the common Law and this was but an opinion delivered in Court where the Iudges were not Iudges and the decree was made as I am enformed because they believed the Will to be nonsence Heir the contrary whereof doth appear by my argument The Court enclyned strongly that the Testator intended to make the Devisee Heir of his lands and that the words can receive no other construction for other constructions would be very strange Will. and forced and the party that made the Will is to be considered as one that was inops consilii and also that wanted a scribe and his intent seems plain and shall not be taken according to the Civill law and if it should the word Heir will as well extend to the lands as goods Adjourned to be argued again Kymlock against Bamfield Mich. 1651. Banc. sup Mich. 24. Car. rot 592. KYmlock brought an Action upon the case upon an indebitatus assumpsit against Bamfield for making of apparel The Defendant pleaded Demurrer in an action on the case upon an indebitatus assumpsit that he became bound in a Bond of 60 l. to the Plaintiff in satisfaction of the Debt and that the Plaintiff accepted of it the Plaintiff replyed that he did not accept of it to this replication the Defendant demurred shews for cause that the Plaintiff had tendred an issue upon the non acceptance of the Bond whereas it should have been that the Defendant non devenit tentus On the other side it was said that it is well enough that it is sufficient to say non accep it and it is not necessary to say he refused the obligation and though the replication be not good yet the plea is also naught and therefore no Iudgement can be for the Defendant The plea is quod devenisset tentus whereas it ought to be devenit tentus And 2ly He shews not in what sum or place nor that he became bound in satisfaction Roll chief Iustice said that by entring into Bond the former contract is gone if you do not refuse it and it is not sufficient to say you did not accept of the Bond for you may yet accept it if you please and the party cannot plead non est factum Contract if you bring an Action upon it until it be absolutely refused and the contract here is turned into a Bond and the law determines the contract Plea and it is not all one with pleading of the acceptance of a horse in satisfaction or or any other thing as a collateral satisfaction and the Plaintiff ought to shew that he refused the Obligation and doth yet refuse it And here is a negative preignans Negative preignan◠for you imply by saying that you accepted not the Obligation in satisfaction that he gave you the obligation and you might have said Non devenit tentus and for the other exceptions they are to no purpose Discontinuance And therefore Iudgement ought to be given against you but by the favour of the Court we can give you leave to discontinue your Action Harding against Freeman Mich. 1651. Banc. sup HArding brought an Action upon the Case against Freeman and declared against him Arrest of Iudgement in an Action upon the case upon the sale of a Horse that the Defendant did sell unto him a Gelding and upon the sale did falsely affirm unto him that the Gelding was his own Gelding and that he bred him of a Colt whereas he bred him not of a Colt neither was it his own Gelding but another mans Gelding and so concludes to his damage Vpon not guilty pleaded and a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement 1. That in this sale of the Gelding the Defendant had made no warranty of him and therefore though the sale were not good yet the Action lies not 2ly The Plaintif doth not declare that the Defendant knowing the Gelding to be another mans did affirm him to be his own and so here doth not appear to be any fraud in the sale Twisden answered that the words are sufficient to imply a disceit though they express not that he knowing it to be another mans horse did make that affirmation for the words are that he did it falso et fraudulenter and affirmed the Horse to be his own But the Court stayed the Iudgement for they said that here is no direct affirmation but only an intendment that scienter fecit yet afterwards judgement was given for the Plaintif Davis against the Lord Foliot Mich. 1651. Banc. sup DAvis brought an action of Assault and Battery and wounding against the Lord Foliot and had a verdict against him and a writ of enquiry of damages For a new writ of Enquiry of damages and upon the writ of Enquiry 200 l. damages were found The Plaintif moved the Court for a new writ because by reason of the wilfulness of the Iury the damages were found too small Twisden on the other side urged that it could not be because there was no miscarriage proved in execution of the writ but it appears to be well executed Roll chief Iustice answered though we grant not a new writ yet we can increase the damages upon view of the wound and here appears to have been a foul Battery by the dagger produced in the Court Damages increased by the Court. and by the party himself that is wounded and it is not fit that a wilfull Iury should prejudice the party therefore either consent to a new writ or else bring your witnesses on both sides and we will hear the motion again At another day Wild said the Court cannot increase damages upon a view of the party if he be not maimed and here is no maiming but only a Battery and wounding But the Court answered that they would advise upon that point for it séems there is the same reason for encreasing of damages in both cases At another day Green moved for increase of damages upon the view and urged 9 H. 4. f. 1. 3 H. ◠◠10 H. 4. and Bret and Middletom case in this
spoken by them severally they ought to have been endicted severally for the words spoken by one of them cannot be said to be the words of the other But Roll chief Iustice said The Endictment was good enough though it be joynt as it is in the case of several perjuries and several batteries where a joynt Endictment doth lie although it do not for several felonies and here the Endictment is upon one and the same Statute and for one and the same offence and therefore the judgement given upon it is also good and it shall be taken reddendosingula singulis i. the words to each of them as they spoke them Floyd against Morgan Hill 1651. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of Trespass for taking away divers goods Error to reverse a judgement in Trespass for taking away goods Anglice and the Error was that there were the words instrumentum ferri used in the Declaration to express divers things viz. de quodam instrumento ferri Anglice a Grioiron de quodam instrumento ferri Anglice a Brandiron et de quodam instrumento ferri Anglice a Mortar whereas there are proper Latin words for them therfore are not to be so uncertainly described Darcy against the writ of Error said it was certain enough as they were described cited the Reg. f. 45. and said if it be not certain in the Latin description Description yet the Anglice helps it Roll chief Iustice demanded what say you to the Case of instrumentum ferri Anglice a Horse-lock adjudged naught lately in this place and there are proper Latin words for the things you describe which you ought to have used therefore this description is not good for where a Latin word signifies many things there an Anglice is proper to be added to it otherwise not and if there be no Latin word to express a thing one may invent a word and interpret it with an Anglice but it is not so here therefore let the judgement be reversed nisi c. Postea Keightley against Nodes Hill 1651. Banc. sup Trin. 1651. rot 869. A Writ of Error was brought to reverse a judgement in a Trespass vi et armis at Doncaster And the Error assigned was Error to feverse a judgement in Trespass vi et armis That the Plaintif declared that the Defendant took certain Cows of his out of the Iurisdiction of the Court and brought them within the jurisdiction and there disposed of them to his own use In which case in regard that the taking of the Cattel which is the ground of the Action was without the jurisdiction of the Court although the disposing of them was within yet the Court had no iurisdiction of the cause To which Roll chief Iustice agreed Trover and said if the Action had been a Trover and Conversion if had been good but being a Trespass vi et armis it is naught and therefore let the Indgement be reversed nisi Cottrell and his VVife against Theoballs Hill 1651. Banc. sup THis case was again moved spoken unto by Turner Iudgement prayed in an Action upon a promise who prayd judgment for the Plaintif because as he conceived the Action was well brought by the Husband and Wife and to prove it he cited these books 39 H. 6. f. 45.9 H. 6. f. 4. Nat. Brev. 131.28 H. 8. Dyer f. 21. Pasch 5 Car. Brown and Floyds case Pasc 13 Car. Oldhams case and said That the consideration here did move from both parties and not from the Husband only 2ly It is not necessary to give the Defendant notice that his wife had attained to the age of 18 years at which time he was to pay the money for he might take notice of it himself Latch on the other side prayed that the Iudgement might be arrested because the promise was made to the Husband only that he would make good the Legacy given to his wife by her Father and give 40 l. more to the Baron and Feme and the Husband is only to have the benefit of the promise and the consideration namely the mariage moved only from the Husband and therefore the Action is to be brought by the Husband only and not by the Husband and his wife and this promise is not like a promise made to a servant to pay money to the use of his Master and it is not here laid that the promise was made to both as it might have been and it is not reasonable to turn over the wives portion for which the Husband hath made her a joynture unto the Feme for if it should have been so the wife might have released it before the mariage and the Case cited of Rippon and Norton was otherwise laid 37 Eliz Banc. Reg. 2ly Here ought to be notice given when the Feme came to her age of 18 years for here the Assumpsit is to make good a Legacy which was to be paid to her at such an age and he ought to give notice of her age as he ought to an Executor and this case is not like as where one binds himself in an Obligation to pay another such a sum when he comes to such an age and the legacy here is to be made good in that manner as the Executor is to pay it Roll chief Iustice said that the party is not bound to give notice Notice but the other must take notice at his peril But the promise is here laid to be made to the Husband only and though the money is to be paid to doth yet it would be inconvenient to intitle the Feme to it and here it was the folly of the Husband to joyn his wife in the Action for he might have brought it alone if he would Iovning in Action for he hath alleged that the promise was made to him alone and therefore the Action is not well brought and it appears by the Declaration that the Feme was of age before the mariage and so the notice is out of Doors The rest of the Iudges agreed with Roll chief Iustice in all and so the Court ruled a nil capiat per Billam nisi Antea Hill 1651 Banc. sup THe Court was moved to quash an Endictment because it was for a private Trespass To quash an Endictment for a private Trespass Endictment viz. for stopping an antient water-course and the Endictment doth not conclude ad commune nocumentum but ad grave damnum which shews it to be no publique nusance so he is not to be endicted But Roll chief Iustice answered A man may be endicted for a private Trespass but the party here hath made himself no title to the water-course and therefore let the Endictment be quashed Comport against Beech. Hill 1651. Banc. sup THe Court was moved on the Defendants behalf For a reference touching a Trespass That he was a very poor man and in making of a Ditch
knowledge of the matter may try it although it may be tryed in another place but if the tryal be ill the Verdict will not help it but there must be a new tryal Therefore it were good to replead as to the place Mich. 1652. Banc. sup ONe took out a Latitat out of this Court and arrests the party Attachment for abusing the processe of the Court. and refuseth to take Bail of him but carryed him into another liberty to charge him with an Action there Vpon this the Court was moved for an Attachment for abusing the processe of this Court And it was granted nisi c. Mich. 1652. Banc. sup IN a tryal at the Bar between â—heesman and Turner and others in Trespass and Ejectment Roll chief Iustice said Where ne unques Executor is a good Plea Revocation Reviver That if there be divers Executors of one Will and one of them refuse to prove the Wil he may plead ne unques Executor And that a Will in writing may be revoked by parol and revived again by parol Theoball and Conquest Mich. 1652. Banc. sup Trin. 1652. rot 1999. AFter a Verdict in an Action of Trespass and Ejectment it was moved in Arrest of judgement that the Lease was altered after pleading Arrest of Iudgement in Trespass and Ejectment On the other side it was moved for judgement 1. Because the Lease was only amended in matter of form and not in substance 2ly Because by the rule of Court the Defendant is to confesse the Lease and so it is not material whether the Lease be good or no. But Roll chief Iustice answered that the Lease was amended in matter of substance and if the Lease be defective we can give no judgement Amendment Iudgement Confession and by your own shewing it is not good and the rule of the Court doth not bind the Defendant to confesse the Lease otherwise than you have made it and therefore let the judgement be stayed Fowke and Boyle Mich 1652. Banc. sup Trin. 1652. rot 460. THe Plaintif brought an Action upon the Case for selling unto him false Bills of publique faith to the value of 800 l. knowing them to be false Demurrer to a Declaration in Action upon the case with an intent to deceive him The Defendant demurs upon the Declaration And Babington of the Inner Temple offered these Exceptions to it 1. That the Ordinance of Parliament for the bringing in of money plate into Guild hall and giving the Commissioners authority to give these bills to them that brought it in for re-payment thereof with interest at 8 l. per centum per â—â—num was mis-recited for it is said that the Ordinance was made by both Houses of Parliament whereas it should be by the Lords and Commons in Parliament for the Houses are the places where they sit and can make no Ordinances and he cited Mich. 13 Car. Tydalls case 2. The Aldermen that are the Commissioners are not called by their Christian names as they ought to be but only by their Sirnames 3ly It is not shewed in what manner the Bills were assigned to him but he says only that they were assigned in due form of Law which is too generally expressed and to this he cited Mich. 10 Iac. Banc. Reg. Glass and Gowes case To these exceptions Latch answered That the mentioning of the Ordinance of Parl. and of the Aldermen is but by way of inducement to the Action and nothing to the ground of it and therefore there need not be so punctual a recital as is surmised neither is it necessary to shew how the Bills were assigned and they are the Defendants own words nor is it material how the money was to be paid Râ—â— chief Iustice The ground of the Action is the deceit in assigning over false Bills and affirming them to be true Inditement Confession and the other matters are meerly matters of inducement and used only by way of recital and not material to the Action And you have confessed the deceit for which the Action is brought by your general demurrer upon the Declaration And therefore let judgement be for the Plaintif except better matter be shewn Postea Wood against Holland Mich. 1652. Banc. sup Trin. 1652. rot 1061. VVOod brought an Action of Trespass and Ejectment against Holland Demurrer to a Replication in Trespass and Ejectment The Defendant pleads that the Plaintif did disseise I. S. of the Land and then made a lease of it to him and that afterwards the land did descend to the Plaintiff The Plaintiff replyes that he was seised of the lands and traversed the disseisin supposed to be made to I. S. And to this the Defendant demurs add for cause shews that he ought to have traversed the descent and not the disseisin But Roll chief Iustice said That the traversing of the disseisin makes an end of all and therefore it is well taken as being the most material matter Traverse Se sin Descent although that the descent might have well enough been traversed And therefore let the Plaintif have Iudgement nisi Reckwitch and Moyle Mich. 1652. Banc. sup Trin. 1650. rot 503. A Writ of Error was brought to reverse a judgement given in an Inferiour Court A Writ of Error to reverse a judgement given in an inf riour Court and the Writ of Error was to remove a Record quod coram vobis residet de placito in Curia manerii de Cuttingbye whereas the Record was de placito in Curia Custodum libertatis Anglae authoritate Parliamenti de Cuttingbye And therefore against the writ of Error it was objected that there was a variance between the writ of Error and the Record and therefore that the writ of Error was not good But against this was cited Lodge and Goodales Case in this Court 23 Car. that it is not necessary to recite in a writ of Error all the words 〈◊〉 the description of a Court and here the writ is not to remove a Record out of an inferiour Court but the writ of Error is to reverse a judgement in a Record quod coram vobis residet Hales answered That here is a right description of the Court in regard of the place where it was held and of the Iudge of it but not in regard of the Lord of it and therefore he conceived it a material objection because a part of the stile of the Court is mistaken not only an additional description of it Roll chief Iustice answered Variance If it be but an additional addition or description it is well enough as it is but we will see what hath been done in like Cases heretofore but me thinks that it shall be intended here to be Curia Custod libertatis Angl. c. for here it is in a Writ of Error which will not lie if it be not a Court of Record But Nicholas and Ask Iustices said It cannot be intended a Court of Record but a Court Baron
case the Action was not brought till after the party tryed But it is objected that the Trespasse here is brought for the same fact for which the party was tryed and therefore it is unreasonable that he should be doubly punished for it To this I answer that it was at the parties election at the beginning either to endict him or to bring his Action of Trespasse Hudsons case 4. rep 43. And here the party hath made no election for the party was endicted at the sute of the Common Wealth and not at the prosecution of the party and so he hath made no election untill now And if the Action might not be brought it might prove very mischievous for the party might get himself indicted and so cousen him that is robbed of this mony Dyer 50. â— rep 13. And the highness of the nature of the endictment doth not drown the Action of Trespasse although that treason doth drown Felony R. 3. 6 H 7. 5. And although the monies here stollen be for feited to the State by the conviction of the Felony yet an Action of Trespass lyes against the Felon to cause him to render damages pro tanto although he cannot recover the mony in specie And the special verdict doth not find that any evidence was given for the Plaintiff upon the endictment but only for the State And for authority he cited Markham and Cobs case Trin. 2 Car. Entred 1 Car. rot 112. Roll chief Iustice said That Iustice Doderidg and Iustice Whitlock held that the Trespass lyes Trespasse But Iustice Iones held the contrary because if the party robbed might have his election either to endict the Felon or to bring his Action of Trespass many Felonies would be smothered and this would prove very dangerous and though the party robbed had endicted the Felon he might have had his goods or he might have brought an appeal against him and so there is no inconvenience to him 4 Iac. In Higgins case it was adjudged where an Action of Trespass was brought by the Husband for beating his wife by reason whereof she dyed that the Action did not lye because it was Felony Ierman Iustice differed from Roll chief Iustice and said that the inconvenience on the other side would be greater than is alleged if the Felon shall so take advantage of his one wrong and in 2 Car. it was held that the Action doth lye Roll chief Iustice said if the Felon have not wasted the goods when he is hanged the party shall have restitution but if he have wasted them Restitution and hath other goods he shall have restitution in value But let Wild argue it again the next Term. Accordingly it was again spoken too by Wild who argued that the Action of Trespass did not lye first because the party did not make fresh sute after the Felon according to the Statute 21 H. 8. which was made to encourage the prosecutor but the party hath not prosecuted here and it is all one to recover damages for the goods and to recover the goods themselves so that I conceive that is no difference And the great inconvenience which might come to the Common-Wealth if the Action should lye doth countervail the damage that may accrew to the party if the Action lye not And it matters not that it is said the Trespass is a distinct offence from the Felony for it is drowned in the Felony and therefore the party can have no satisfaction for it Mich. 21 Iac. Ayers and Higgins case C. â— 31 H 6. Bâ— 15. trespasse 415. 4. Iac. Higgins and Butchers case B. R. Roll chief Iustice This is after a conviction and so here is no fear that the Felon shall not be tryed Bat if it were before conviction the Action would not lye for the danger the Felon might not be tryed And there is no inconvenience if the Action do lye and since he could not have had his remedy before he shall not now lose it and now there is no danger of compounding for the wrong the rest of the Iudges agreed with Roll and so Iudgement was given for the Plaintiff Ellis and Pipin Mich. 1652. Banc. sup THe Court was moved that an outlawry might be discharged Motion to discharge â—n outlawâ—y because it is now pardoned by the Act of oblivion for notwithstanding it were not pardoned if it were an outlawry after Iudgment except the monyes due for which the party is outlawed be payed to the party as the book of 6 H. 7. f. 21. is yet outlawryes before Iudgment are pardoned and besides the parties here did submit to an arbitrement touching the matters in difference between them and an award is made But the Court answered that the outlawry cannot be discharged untill the party have brought his scire facias upon the Act Scire fâ—cias Interest and it was also said that the party at whose sute another is outlawed hath an interest by the outlawry as well as the State Prior and Hale Mich. 1652. Banc. sup A Letter of Attorney for one to appear to an Action is good enough by paroll to support a Iudgement given thereupon A letter of Attorney by paâ—oll good to some intent By Pinsent protonotarie of the Common Pleas. Nota. Fowke and Boyle Mich. 1652. Banc. sup FOâ—ke brought an Action upon the case against Boyle Demurrer to a Declaration in an Action on the case for selling of false bills of publique faith unto him to the value of 800 l. the Defendant demurred to the Declaration and took these exceptions to it 1. That the ordinance of Parliament upon which these bills of publique faith were grounded was misrecited for it is said to be made by both houses whereas it ought to be by the Lords and Commons 2ly The Aldermen who were authorised by the ordinance to give these bills of publique faith are not named by their Christian names but only Alderman such a one naming the surname 3ly There is 70 l. expressed to be paid as is mentioned in the papers and it is not expressed at what time or place as it ought to have béen 16 E. 4. f. 3. and 28 H. 6. f. 3. 4ly Here is an assignment set forth to be made in due form of Law but doth not shew in what maner 10. Iac. Mich. Glass and Gowr in this Court Latch on the other side said that the mentioning of the ordinance and of the Aldermen was but inducement to the Action and there is no necessity to call the Aldermen by their Christian names but as they are called in the Ordinance nor is it necessary to shew how the assignment was made and these words are the words of the party nor is it needfull to shew how the monies were to be paid Roll chief Iustice The cause of the Action is the desceit in assigning the false bills and affirming them to be true Inducement and all the other matters are but matters of inducement and by way
Banc. sup Pasch 1653. rot 116 or 117. A Writ of Error was brought to reverse a judgement given in an Action of debt for rent arrear upon two leases for years Error to reverse a judgement in debt for rent viz. upon a lease for 3 years of divers Copyhold Lands and upon a lease for 31 years for other lands Howell assigns for Error 1. That the Declaration is not good because that it is for an entire rent reserved for 2 several terms whereas one of the terms is expired here cannot be made any apportionment of the rent because it appears not which of the lands are Copyhold and which are Free lands Roll chief Iustice He ought to shew how much of the lands are Copyhold and how much Freehold Hales Here is but one entire rent reserved and it shall be paid as well after the expiration of the Copyhold lands as before Roll chief Iustice Discontinuance Then for what term shall the rent be reserved for it doth not appear to us Therefore you were best to discontinue your action otherwise if we give judgement upon the Exception taken you may lose your rent Hill and Dechair Trin. 1653. Banc. sup AN Action of debt was brought for 5 l. for selling of Wine without Licence Arrest of judgement in an Action upon the Statute for selling wine without license and a Verdict was found for the Plaintif It was moved in Arrest of Iudgement That the Action is not well brought because it is not by Original as it ought to be by the Statute of 18 Eliz. Wild on the other side answered that it is not necessary to be by Original for a Bill of debt as this is is in the nature of an Original writ if it should be otherwise the Statute would be repugnant for the debt one by Statute may be recovered in this Court by Information and this is the usual practice of this Court. Twisden took a difference between a penal Action and a popular Action A penal Action he said may be by Bill but not a popular Action 2ly It is not shewed that the party was not licensed to sell Wine 3ly The Verdict finds him guilty for selling of 5 pints of Wine between such a time and such a time Relation Action part where of was before the Information brought and part after the Information brought To the last exception Roll chief Iustice answered The matter shall relate to the filing of the Bail for then the Action beginneth not before But what say you to the other Exception Wild That is mistaken for the Action is upon another branch of the Statute Roll chief Iustice By an original Action it is meant in the Statute that the offence shall not be tryed upon a plaint in an Inferiour Court not to distinguish it from an information for a Writ Bill is all one in this Court Stat. 2 R. 3. A Bill is not an Original writ Writ Bill but an original Action and it is the common practice to sue in this Court in this manner But we will advise At another day the Court was moved for judgement because the Action is well brought though it be not brought by original and the Case urged of Winston against it is not to the purpose for that Case was not upon an information as our Case is but it was brought by the party grieved to recover his treble damages and in that case the party did not pursue the manner of suing for them as the Statute directed but we have here done it and it is the constant practice of this Court. Twisden answered that Winstons case is not answered for that was a popular Action as our case is Roll chief Iustice The question here is whether there be an original Action or not upon the Statute of 18 Eliz. C. 5. And I say it doth not appear whether that Statute meant to out this Court of its Iurisdiction or not but it is left at large in the Statute and me thinks it is an original Action Iurisdiction and Plats Case is that an original Action may be by Bill And I conceive the Statute intended only to exclude inferiour Courts and the constant course is that the party being in Custodia Marescalli he may be proceeded against by Bill and we will not suffer this Court to be excluded from its jurisdiction by obscure words in the Statute Therefore let judgement be for the Plaintif nisi c. Ricott and St. Iohn Trin. 1653. Banc. sup IN Action of Trespass an Ejectment brought by Ricott against St. Iohn Motion that the Defendant may plead as a third person shall direct the Court was moved for a third person that he will save the Defendant harmless and prays that giving him security so to do the Defendant may be ordered by the rule of this Court to plead as he should direct him and that he be not suffered to confesse a judgement Roll chief Iustice It is out of the way for you to give such security for there yet appears no collusion But you shall be made a party to defend the title and then move again Trin. 1653. Banc. sup IN the Case of one Clark it was said by Roll chief Iustice Where a day is taken inclusive where exclusive Arbitrement That if the submission to an Award be that the Award be made six days after the submission the day of the Award is to be taken inclusive and not exclusive so that if the Award be made the same day on which the submission was it is a good Award Ayre and Hauxesworth Trin. 1653. Banc. sup AYre brought an Action of Trespass against Hauxesworth for his Cattels damage feasant in D. the Defendant justifies in another County Whether a Traverse was well taken and traverseth absque hoc that he is guilty in D. or in any other place The question was whether the traverse be well taken or not Roll chief Iust answered he must take a traverse as this case is because the justification is local Traverse Discontinuance Therefore let the Plaintif take nothing by his Bill for he may not discontinue his Action because it is in Trespass Nota. Fletcher and King Trin. 1653. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of debt 〈◊〉 â—â—â—ght upon an assumpsit to save one harmless Error to reverse a Judgement in debt upon an Assumpsit in disposing of certain good â—sâ—ised by an Order of thâ— Commissioners of Haberdashers Hall 〈◊〉 â—â—sendant 〈◊〉 that he had saved him harmess The Plaintif replyed that he was damnified the Defendant rejoyns by protestation that there was no Order of Haberdashers Hall for plea saith non damnificatus and upon this the Plaintif demurred in the Common Pleas and a judgement was given there upon the Demurrer for the Plaintif In the writ of Error here the Error assigned was that the rejoynder is a
this trespass may plead by averment that he hath satisfied the trespass don already and aver with what Cattel it was done Jerman Iustice said the beasts ought to be named particularly for averia is a large word and signifies cattel of divers kinds and it is too general a word to declare upon But Roll chief Iustice answered where the thing it self is in demand and an action is brought for it as it is in an action of trover and conversion the thing ought to be particularly named but here the action is brought for damages for breaking his Close and eating his grass And if you had demurred to the Declaration Demurrer it had not been a good Demurrer but now it is after a Verdict which makes it stronger against the Defendant Nicholas and Ask Justices concurred with Roll so the Iudgement was affirmed Mich. 1649. Banc. sup THe Court was moved for a Prohibition to the Admiralty upon a surmise that one was arrested there for rescuing one out of the hands of a Messenger of the Admiralty For a Prohibition to the Admiralty who was taken by him by the warrant of the Court Contempt for a contempt to the Court in a sute depending there betwixt him and another Roll chief Iustice answered if the cause were maritine which was depending there the Court may examine a contempt to the Court in that cause but they cannot procéed criminally against the party that rescued him that did the contempt Therefore give them notice that they shew cause why we should not grant a Prohibition Prohibition Ireland against Michelborn Mich. 1649. Banc. sup Entred Mich. 24 Car. rot 111. MIchelborn brought an Action of Trespass against Ireland Error to reverse a judgement in Trespass vi et armis quare vi et armis clausum suum fregit and for driving and beating his Cattel The Plaintif had a Iudgement the Defendant brought his writ of Error to reverse this Iudgement The Errors assigned were 1. That it appears not by the Continuando how long the Trespass continued 2ly There is a discontinuance to part of the plea and a departure also Discontinuance Windham in answer to the first Exception said that it is diversis diebus et vicibus and it is without an usque and the continuance is but in aggravation of the Trespass and the Action it self is for the first Trespass which is the original and the diversis diebus et vicibus shall be intended before the Action brought 20 H. 6. f. 15.35 H. 6. s 4. Hob. rep 377. and the party may well enough averr in another Action brought for this Trespass that the Plaintif had recovered for it in an action formerly brought and for the new assignment he said it was but as a new Declaration But the Court bid the Defendant in the writ of Error advise concerning the second exception Roll chief Iustice said he believed the case cited out of Hobard was not well printed but something left out for it hath been ruled that after a verdict it is good enough to say one had imprisoned him for a long time but here is a Iudgement upon a nihil dicit which will alter the Case Ierman Iustice said it was considerable and fit to be advised on Holhead of Councel with the Plaintif in the writ of Error took another exception viz. that there was an issue joyned as to the beating of the Cattel and that is not tryed nor continued and yet damages are given entire for the chasing and beating of the Cattel Harris against Gibbons Mich. 1649. Banc. sup Pasch 1649. rot 303. GIbbons brought an Action upon the Case against Harris upon an Assumpsit Error to reverse a judgement in an Action on the Case and declared that the Defendant in consideration that the Plaintif should let unto the Defendant a Booth in Sturbridge-fair did assume promise to pay the Plaintif ten pound for the same and to pay the Plaintif for all such Wine and Hops as should be spent in the Booth during the Fair. The Plaintif had a Verdict and a Iudgement The Defendant brought a writ of Error to reverse this Iudgement and assigned this Error that it did not appear in the Declaration that the Fair was ended when the Action was brought and consequently that there was cause of Action But Twisden of Councel with the Defendant in the writ of Error said it shall be intended it was ended for the standing there during the Fair is the cause of Action Declaration Notice Roll chief Iustice took another exception That the Declaration doth not express that the Plaintif gave notice how much Wine and Hops he laid into the Booth during the Fair nor that he made any demand of the payment of any sum of money due and so the Defendant could not know how much money he should pay and therefore the Declaration is not good because it is too general Therefore advise whether you will maintain it or no and because the Councel desired not to be farther heard in it the Iudgement was reversed Mich. 1649. Banc. sup AN Action of Covenant was brought upon an Indenture for the payment of a certain sum of money at a certain time Arrest of Judgement in an action of Covenant The Defendant pleaded payment at the time and upon this an issue was joyned and a Verdict found for the Defendant The Plaintif moved in arrest of Iudgement and alleged for cause that the Issue was mis-joyned because the place of the payment was not alleged which is material and so there can be no Iudgement Maynard for the Defendant moved for Iudgement and said that the issue was well joyned and that it was not material to allege the place of payment because it is a personal Action and the place shall be intended where the Action is brought 1 E. 5. f. 3. And here he cannot allege an immaterial place and so it must necessarily be intended to be where the Action is brought Roll chief Iustice If you will argue it put it in the Paper But there is a difference between finding the money paid and the finding it not paid Denoir against Oyle Mich. 1649. Banc. sup VPon a Rule formerly made in this case to shew cause why a prohibition should not be granted to the Court of Policy for assurances For a Prohibition to the Court of policy for assurance Hales opened the case as formerly had béen done and prays that there may be a Prohibition granted because the party may have remedy here as well as in that Court and so this Court ought to be preferred and the contract here hath no relation to merchandizing and so it doth not properly belong to that Court Serjeant Glyn of Councel with the Defendant prayed that there might be no prohibition granted because it hath not béen known that even such a prohibition was granted and he recited the Statute made for assurances of 43 Eliz. and said this
these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the