to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
also navigation An Endictment that is framed upon a Statute ought to pursue the words of the Statute or else it is not good Mich. 22. Car. B. r. For the offence being made by the Statute for which the party is Endicted it is reason the Statute should be punctually recited One that is convicted upon an erroneous Endictment cannot move after his Conviction to have the Endictment quashed but must bring his Writ of Error to reverse the Judgement given against him upon the Endictment Mich. 22. Car. B. r. For after Judgement it is too late for an Endictment is quashed for the insufficiency in it or because no good Judgement can be given upon an erroneous Endictment The Court will not quash an Endictment that is preferred for the publick good although it be not a good Endictment but will put the party Endicted to traverse it or to plead unto it Mich. 22. Car. B. r. For it is by the favour of the Court that any Endictment is quashed for if the Court please they may force the party to traverse or plead An Endictment removed by a Writ of Certiorari into this Court may be sent back again into the County or place whence it was removed if there be cause to do it Mich. 22. Car. B. r. If an Action upon the Case be brought against one for calling another Theif and the Defendant doth justifie the words and upon the tryal it be found for the Defendant an Endictment may be forthwith framed against the Plaintiff to try him for the Felony Mich. 22. Car. B. r. For the Felony appears to the Court by the Verdict found for the Defendant An Endictment doth lie against one that cheates another at play with false Dice Hill 22. car B. r. Or for any other way of cheating at play or otherwise An Endictment doth not lye for a private nusance or other injuries because the nusance or injury done is not made ad commune nocumentum but ad privatum and therefore an Action upon the Case doth only lye for the party that 〈◊〉 damnified by this nusance or injury Hill 22. Car. B. r. 11. Maii. 1651. For Endictments are to punish publike offences onely and done against the publick peace An Endictment lies against one for assaulting and stopping of another in his passing in the High-way 22. Hill Car. B. r. One that it Endicted for Felony may have Councel Assigned him to speak for him Pasc 23. Car. B. r. But such Councel are only to speak for him in matter of Law and not concerning matters of Fact Although a Bill of Endictment be preferred to a grand Jury upon Oath yet they are not bound to find the Bill if they find cause to the contrary and on the otherside although a Bill of Endictment be preferred unto them without Oath made yet they may find the Bill if they see cause Pasc 23. Car. B. r. But it is not usual to prefer a Bill unto them before Oath be first made in Court Every Endictment ought to be preferred against the party for some offence committed by him either against the Common Law or against some Statute Trin. 23. Car. B. r. There ought to be fifteen dayes between the preferring of an Endictment and the convicting the party Endicted Trin. 23. Car. B. r. Q. In what cases for I conceive it holds not in all An Endictment lies against one that makes a false oath in an answer to a Bill in Chancery or in an Affidavit made in a cause depending there or in any other Court of Record Trin. 23. Car. B. r. But Q. for what false oath made in an answer it lieth for it hath been held that though the whole answer be not in all points true yet an Endictment lies not because answers in the Chancery are drawn by Councel and not the party himself Where the party Endicted is Out-lawed upon the Endictment the Court will not quash the Endictment although it be erroneous but will force the party Out-lawed to bring his Writ of Error to reverse the Out-lawry Mich. 23. Car. B. r. An Endictment may be amended the same Term it is brought into the Court by the Clerk of the Peace but the next Term after he cannot amend it Pasc 24. Car. B. r. If onely a word of form be left out in an Endictment yet the Endictment is good but if one word of substance be omitted the whole Endictment is naught Pasc 24. Car. B. r. An Endictment of forcible entry doth lye for a Tenant for years who is forcibly put out of his possession By the Statute of 21. Jac. Pasc 24. Car. B. r. Upon an Endictment preferred against one in the Kings Bench there doth issue out an Attatchment against the party Endicted to force him to appear Pasc 1650. 1. Maii. B. S. Execution An Execution may issue forth out of this Court notwithstanding a Writ of Error be brought in the Exchequer Chamber to reverse the Judgement given here and upon which the Execution is grounded if this Court be satisfied that there is no Error in the Judgement or if the Record be not duly removed out of this Court by the Writ of Error Mich. 22. Car. B. r. One may pray for Execution upon a Judgement given in the Court where it was given although a Writ of Error be brought to remove the Record and to reverse the Judgement if he that brings the Writ of Error do not assign his errors in due time Mich. 22. Car. B. r. The Court may grant Execution upon a Judgement given although a Writ of Error be brought to reverse the Judgement if the Court be satisfied that the Writ of Error is brought meerly to delay the party from his Execution Mich. 22. Car. B. r. For the Law doth not countenance delayes but delights to have speedy Justice done to all parties though it loves not to surprise any person by over hasty proceedings If Execution be not taken within two years after Judgement is given in a Cause there must be a Scire facias taken out to revive the Judgement and Execution cannot be taken out Mich. 22. Car. B. r. But this Scire facias may be taken out of course without moving the Court But if Execution be not taken out in seven years after or longer then a Scire facias cannot be taken out to revive such a Judgement without moving the Court but upon motion the Court will grant it The Court will not deliver one out of prison that lies there in Execution upon an Affidavit But the party may have a Writ of Supersedeas to Supersede the Execution if there be cause Trin. 24. Car. B. r. Be the matter contained in the Affidavit never so strong for the prisoner because he lies in prison by matter of Record and must be delivered by an Act of as high a nature which an Affidavit although it be made before a Judge of the Court and is filed in Court is not The Court cannot divide an Execution
had but if it may not be had that then he recover Dammages for the thing Hill 22. Car. B. r. viz. Dammages to the full value of the thing it self and also for the detaining of it Wheresoever the Defendant is upon the Judgement to be fined to the King there the Judgement is to be with a Capiatur but where he is not to be fined there the Judgement shall be that the Defendant be in Misericordia Hill 22. Car. B. r. Though a Judgement be legally signed yet if it be never entred it is no Judgement Hill 22. Car. B. r. For every Judgement must be matter of Record but before the Entry it is not so By the course of the Common Pleas a Surety that is bound with one in an Obligation may plead for the principle to an Action brought upon this Obligation and acknowledge a Judgement against him But this seems very hard and this Court will not admit of such practice Pasc 23. Car. B. r. It is said that now the Common Pleas will not suffer it but do agree in their practice in this point with this Court The Defendant hath all the Term wherein a Judgement was given against him to speak any thing to arrest it For the Judgement is all the Term wherein it was given in the breast of the Judges either to make it a Judgment or not although it be entred upon Record Pasc 23. Car. and 24. Car. B. r. Yet the Plaintiff may take out Execution if nothing be spoken to arrest the Judgment in four dayes after the Postea is brought into Court any time after that in the same Term. A Judgement may be entred as to part of an Issue and a Nolle prosequi may be entred as to another part of it Pasc 23. Car. B. r. When at a Tryal the Defendant is called which is used to be done three times distinctly by the Crier of the Court and he do not appear Judgement shall be taken against him by default Pasc 23. Car. B. r. That is for not appearing to make his Defence For the Law will presume he is guilty and hath no Defence to make If Judgement be given for more then the Plaintiff doth demand in his Declaration this Judgement is erroneous Pasc 23. Car. B. r. For to give one more then is his due is as equal injustice as to deny any one that which is his due And it shall be presumed that the Plaintiff best knows what is his due and will demand it to the full If an Action of the Case be brought against one for speaking of divers distinct scandalous words of another and the Dammages are laid severally for them viz. so much Dammages for speaking of such of the words and so much Damages for the speaking of such other of the words there Judgement may be given for speaking of such of the words as the Plaintiff was damnified by and not for the other words by which he was not damnified But if the Dammages be laid entire for speaking of all the words and some of the words be not actionable so that Dammages cannot be given upon all the words there shall be no Judgement or Dammages given for any of them For the Court cannot proportion the Dammages Judgements given in inferiour Courts must be entred Idea consideratum est per curiam in words at length and not Ideo consideratum est c. as the use is in the Courts at Westminster for if they do not they are erroneous there though it be not so in the Courts at Westminster Trin. 23. Car. B. r. For inferiour COurts are tied strictly to observe their ancient forms and not to vary from them For if they should be permitted many inconveniencies would quickly follow by the unskilfulness of the Clarks Although the Plaintiff have signed his Judgement against the Defendant yet he may wave it if he will and accept of a Plea from the Defendant Trin. 23. Car. B. r. and 24. Car. B. r. For the signing of it doth not make it a Record of the Court but if it were entred he could not wave it A special Judgement is where one brings an action for divers things as for example A man brings an Ejectione firmae pro tofto crofto c. and the Plaintiff hath a Judgement for one or more of the things for which the Action is brought and doth wave some one or more of the other things for which the Action is brought in such case he must release his Damages to all and yet he may have his Costs of Suit Trin. 23. Car. B. r. If a Verdict pass for the Plaintiff and the Plaintiff will not enter his Judgement upon this Verdict the Defendant may enter it and so it is of a Writ of Enquiry of Dammages Trin. 22. Car. B. S. If the Plaintiff will not file it the Defendant may do it For the Plaintiff ought to be content with what the Law gives him If a Clark of this Court will not appear to an Action that is brought here against him the Plaintiff may enter Judgement against him By Woodward Clark of the Court Trin. 23. Car. B. r. But Q. What Judgement whether a Judgement upon a nihil dicit or some other special Judgement The Court will not give a Judgement which they know would be against the Law although the Plaintiff and Defendant do agree to have such a Judgement given Trin. 23. Car. B. r. For the Judges are to do equal justice according to their best skill and not to err willfully If the Plaintiff will not bring in his Postea into the Court according to the Rules of the Court that the Defendant may have time to speak in Arrest of Judgment and the Defendant do make proof of this to the Court upon oath the Court will Arrest the Judgement untill the Plaintiff shall move for Judgement Mich. 23. Car. B. r. And he may thank himself for this trouble and delay Judgement cannot be entred untill four dayes after the Postea is brought in and entred in the Office but after that if nothing be spoken in the mean time to Arrest the Judgement it may be entred Mich. 23. Car. and Pasc 24. Car. B. r. If a Judgement be entred contrary to the Rule of Court made to stay the entry of it the Court upon motion will vacate the Judgement and amerce the party that entred it Mich. 22. Car. B. r. Where a Verdict is imperfect there can be no Judgement given upon it but the Court will grant a new venire facias to summon another Jury to try the issue again Mich. 23. Car. B. r. For the parties shall not be compelled to go further back in their proceedings then where the error was made and that was by the Jury If one bring a Writ of Error to reverse a Judgement given in the Common Pleas and do not remove the Record by a Certiorari the Plaintiff may move in the Common Pleas for Execution notwithstanding the Writ of Error brought
cause of Action to warrant his Declaration or where some material and essential part of the Declaration is omitted such Declarations are not helped by the Statute Mich. 22. Car. B. r. Hill 22. Car. B. r. If a special Verdict be drawn up contrary to the notes agreed upon by the Councel on both sides at the tryal the Court upon a motion will rectifie this if the parties cannot agree between themselves to do it or that the Councel on both sides did formerly consent to such an alteration Mich. 22. Car. B. r. If the Court do direct the Jury to finde a speciall Verdict upon the prayer of the Plaintiff or of the Defendant the party at whose prayer the special Verdict was found ought to prosecute this special Verdict that the matter in Law in it may be determined Mich. 22. Car. B. r. Because the Verdict was directed to be so found in his favour Where the Court doth direct the Jury to finde a special Verdict one of the Councel on both parts are to agree upon the notes for it and to draw them up and to set their hands to them and to deliver them in unto the Jury in convenient time or else the Court will take a general Verdict Mich. 22. Car. B. r. The Chief Justice may in some special case take a Verdict out of Court but then the Verdict must afterwards be pronounced in Court Mich. 22. Car. B. r. If a matter in fact be left out in the notes drawn up by the Councel of the special Verdict found by the Jury this cannot be amended afterwards though the Court be moved in it and although the Councel on both sides do consent Mich 22. Car. B. r. For this were for the Court and Councel to make a new Verdict against the finding of the Jury who have found the matter of Fact already If one of the parties whom a special Verdict doth concern will not joyn with the other in prosecuting of the special Verdict the Court upon a motion will order him to joyn in it and if the Verdict be made up and the party will not bring it in to be entred and proceeded in the Court will grant an Attachment against the party Mich. 22. Car. B. r. The Plaintiff and Defendant ought both of them to appear in Court to hear a special Verdict and the Jury is to be called and to have the special Verdict read unto them by the Secondary and upon the reading of it if there be any mistake in the penning of it the Councel on either side hath liberty to except against it and when the Councel is agreed then the Secondary demands of the Jury whether they agree to find it so and if they answer they do then the Verdict is found Pasc 23. Car. B. r. If the Jury will find against the directions of the Court any thing in matter of Law the Court will not receive the Verdict but compell them to find as the Law requires Pasc 23. Car. B. r. For the Court is judge of matters in Law as the Jury is of matters of fact If in an Action upon the Case brought for speaking of scandalous words the Jury do find that the Defendant did speak words which are Actionable against the Plaintiff and so give a Verdict for the Plaintiff and it appears that the words found are not expressed in the Declaration this is not a good Verdict if there be not other words found which are in the Declaration which are actionable Trin 23. Car. B. r. For the words in the Declaration are onely put in issue to the Jury A special Verdict after the notes are agreed upon by the Conncel and drawn up and their hands set unto them is not a special Verdict untill it is allowed by the Court Mich. 23. Car. B. r. For they are to judge whether the matter in question be rightly stated or not Where a Verdict is imperfectly found by the Jury there the Defendant is not to move upon it in arrest of Judgement for there cannot be any Judgement given upon such a Verdict and by consequence the motion is needless but in such case there ought to be a new venire to summon a new Jury to try the cause again Mich. 23. Car. B. r. Where a special Verdict is imperfectly drawn up and entred the Judges will not argue the matter in Law for there can be no Judgement given in the cause by reason that the Verdict is not good but in such a case there must be a new venire that a new Verdict may be found Hill 23. Car. B. r. Mich. 1649. B. S. 13. Nov. A cause depending in Court upon matter in Law found by a special Verdict ought not by the ancient practice of the Court to be read in Court as a Record untill books thereof be given unto the Judges of the Court and so is the use in the Exchequer at this day Pasc 24. Car. B. r. That the Judges may have sufficient time to consider of and to speak to the matter in Law A misdemeanor of the Jury before they give their Verdict is not a sufficient cause to make voide the Verdict Pasc 24. Car. B. r. Although they are punishable for it If a Verdict be given where there is no issue joyned this is a Jeofaile and there can be no Judgement given upon such a Verdict but there must be a repleader to bring the matter to a tryal Pasc 24. Car. B. r. For there was nothing tryed before for want of an issue joyned A special Verdict ought to be prepared by Councel and delivered to the Jury to consider of before they deliver their Verdict in private to the Judge and not the next morning when the Jury come to deliver their Verdict openly in Court Pasc 1650. B. S. 2. Maii. For then the Court cannot expect till they consider of it In criminal causes if there be any errors in the proceedings they are not helped after a Verdict by the Statute of Jeofailes Pasc 1651. B. S. 11. Mati For the Statute montions not criminal matters and it shall not be extended to equity because it is in abridgment of the practice of the Common Law Although the Court do bid the Secondary Record a non sute yet if be not Recorded the Court may take the Verdict afterwards Trin. 1651. B. S. For the non-sute is no non-sute before it be recorded If the Plaintiff and the Defendant do consent to have the Jury find a special Verdict the Jury ought not to refuse to finde it Trin. 1652. B. S. Q. A Verdict by default is found in this manner in an Action of Trespass and ejectment When the Jury is ready at the Bar to try the cause the Secondary bids the Cryer call the Defendant which he doth thrice and if he do not appear the Plaintiffs Councel do pray the Court to take the enquest by default thereupon the Jury is sworn and the Record is read unto them then the Plaintiffs Councel do
of Action did first arise Mich. 22. Car. B. r. Transitory Actions ought not to be brought within Corporations for their priviledges do properly and onely extend for the tryal of such Actions the causes whereof do arise within their own jurisdictions Mich. 22. Car. B. r. Either an Action upon the Case or an Action of Detinue at the Election of the Plaintiff may be brought for goods detained from him 22. Car. B. r. An Action of Trover and Conversion is in its nature but an Action upon the Case to recover dammages Mich. 22. Car. B. r. An Action upon the Case doth lye by the Statute against the Court of Admiralty for holding Plea of a matter which is not within their jurisdiction Mich. 22. Car. B. r. Where a promise is made by a Fem Covert or by a Servant for the Husband or the Master the Action for breach of this promise ought to be brought against the Husband or the Master for it is their promise and the Wife and the Servant are but instruments Mich. 22. Car. B. r. An Action upon the Case doth lye against one for speaking such words falsly and maliciously of another as if they were truly spoken of the party he might be punished as a Felon or by some Statute fined or imprisoned Mich. 22. Car. B. r. as for calling him Theef c. There is a difference betwixt bringing of an Action and the laying of Action Mich. 22. Car. B. r. It is cause sufficient to ground an Action upon the Case for one to put another to the trouble and charges to Sue for that which is his own Mich. 22. Car. B. r. The cause for bringing an Action upon the Case for the speaking of words against one is the temporal loss or dammage which may accrew to the party against whom they are spoken by the speaking of them and not the words themselves Mich. 22. Car. B. r. An Action upon the Case doth lye for speaking of words against a man by reason of which he lost his marriage Mich. 22. Car. B. r. An Action upon the Case doth not lie for Arrerages of Rent due upon a Lease for yeers because the Law gives a proper Action for it to wit an Action of Debt Mich. 22. Car. B. r. Upon a promise made upon an insimul computaverunt the party to whom the promise is made may either have an Action of Debt or an Action upon the Case at his Election for the thing which was before in dispute and uncertain is by the account and promise reduced to a certainty Mich. 22. Car. B. r. For a Debt certain referred amongst other things to an Arbitration an Action of Debt doth not lye but an Action upon the Case Mich. 22. Car. B. r. It is not safe to be too particular or over curious in the laying of an Action for it is often times a cause that the Action doth fail Hill 22. Car. B. r. An Action upon the Case lies for calling one Whore in London but this is by the special custome of the City Hill 22. Car. B. r. yet 24. Car. Pasc The Court was divided in opinion in this question whether an Action doth lye or not An Action upon the Case lies for a private nusance but not for a publike Rasc 23. Car. B. r. An Action upon the Case doth lie for scandal or for molestation Pasc 23. Car. B. r. Where a Joynt Action doth lie against divers persons of whom some are known to the Plantiff and the rest are not known unto him the Action may be brought against them that are known by their particular names and against them that are not known generally with a Simul cum aliis c. Pasc 23. Car. B. r. In a tryal upon a Trespas and Ejectment or a Replevin touching the title of the Land in question although the Verdict pass against the Plaintiff yet he may bring a new Action for the same Land for such tryals are not final Pasc 23. Car. B. r. because the Land is not recovered in them but the possession In a Case betwixt one Nichols and Webb in the Common Pleas for calling the Plaintiff being an Atturney at Law Knave a Verdict and judgement was given for him and this judgement being afterwards remoyed by a Writ of Error into this Court the Judgement was affirmed in Trin. 12. Car. Rot. 102. Pasc 23. Car. B. r. An Action brought for Rent or breach of Covenant upon a Lease may be laid either in the County where the Lease was made or in the County where the Lands do lie that are let by the Lease Pasc 23. Car. B. r. Vexatious Actions are not favoured in Law nor by the Court but may be referred to the Master of the Office to consider of them Trin. 23. Car. B. r. A violent intendment may bring one within the compass of an Action Mich. 23. Car. B. r. by Rolle One may in some Case bring an Action at the Common Law for that for which he may also have his remedy in the Eclesiastical Court for the Common Law is to be preferred before the Eclesiastical Law where they stand in equal degree in respect of the matter to be tryed Mich. 23. Car. B. r. By a special custome an Action doth lie in some Cases in which at the Common Law no Action doth lie and so was it adjudged 8. and 13. Car. Mich. 23. Car. B. r. The Kings Charter cannot enable the Pattentee to bring an Action which the Common Law allows not Mich. 23. Car. B. r. If one bring an Action upon the Case for divers words spoken whereof some are Actionable and some of them are not yet the Action lies Trin. 24. Car. B. r. The Husband may bring an Action alone for scandalous words spoken against him and his Wife and recover and yet may afterwards bring another Action for to recover dammages done to his Wife by the speaking of the same words Trin. 24. Car. B. r. for the Husband and Wife are both particularly damnified by the speaking of the words An Action upon the Case doth not lie upon a contract which sounds in the realty Q. if the contract be mixt with other matters which are not in the realty whether it will then lie or no Mich. 24. Car. B. r. If one take out a Latitat within the time limited by the Statute for the limitation of Actions it is a good bringing of the Action in due time and he is not barred by the Statute although he do no declare against the party within the time limited by the Statute Mich. 1649 B. S. An Action of the Case doth lie against one that doth Arrest another without cause Pasc 1650. 6. Maii B. S. One may have an Action upon the Case against a Witness that is served with a Subpoena to appear at a tryal and doth not appear but by the Statute Pasc 1650. B. S. 18. Maii 13. Nov. A Joint Action of the Case doth not lie against two several persons for
speaking the same scandalous words for the words of one are not the words of the other but they must be severally spoken and consequenly several Actions ought to be brought against them but a Joynt Endictment doth lie in such a Case 27. Jan. 1650. B. S. So ruled by the Court. One may joyn two Debts due upon two several Obligations in one Action and so it is of other personal Actions but it cannot be done in real Actions 6. Feb. 1650. B. Sup. If a Carriers servant or his son conspire to rob the Carrier and do rob him the Carrier not being privy to the conspiracy an Action will lie for the Carrier against the Hundred where he was robbed upon the Statute of Winchester but this matter may be urged to the Jury upon the tryal in mitigation of dammages by Rolle Chief Justice Amendment Original Writs are not amendable at the Common Law for if the Writ be not good the party may have another Hill 22. Car. B. r. The leaving out of the Atturneys name in the Imparlance Roll is Amendable upon a motion made to the Court to have leave to do it but not without leave of the Court so that the Atturnys name be not left out in the Issue Roll for then it is not Amendable Hill 21. Car. B. r. If in a Replevin the Avowant do amend his Avowry before the Term and do pay costs the Plaintiff ought to reply the next Term following but if he pay not costs he is not bound to reply the next Term. 21. Car. B. r. Any fault in pleading which would be Amendable if the cause were depending in an inferior Court may be amended where the cause depends in a superior Court but not è contra 21. Car. B. r. Where two several persons joyn in one Declaration and one of them dye depending the Sute the Declaration cannot be Amended but the other party that survives must have a new Writ for there is great difference betwixt a Joynt Action and a several Trin. 22. Car. B. r. A Plea may be amended upon giving of notice thereof to the other party and paying of costs if the Plea be only entered in Paper but if it be entred in Parchment it cannot be amended for then it is a Plea upon Record Mich. 22. Car. B. r. The Court of the Kings Bench will not Amend a Transcript of a Record removed thither by a Writ of Error out of an inferior Court but they will Amend a Record removed thither out of the Common Pleas if they see cause Mich. 22. Car. B. r. If the Plaintiff desire to alter his Declaration it is in election of the Defendant to take costs of the Plaintiff and to let him amend his Declaration or to refuse to take his costs and to Imparle to the next Term. 22 Bar. B. r. and 1650. B. S. A Return upon a Habeas Corpus or upon a Certiorari to remove Orders of Sessions of the Peace c. cannot be Amended the Term after the Return is made but it may be Amended the same Term in which it is made Hill 23. Car. B. r. The Clerk of the Peace may Amend an Endictment removed into this Court at any time during the Term in which it came in here but afterwards it cannot be Amended Hill 23. Car. B. r. The Plaintiff may Amend his Declaration though it be seven years past since he Declared if it be but in Paper Hill 23. Car. B. r. If the Plea Roll be rightly entred though the Postea be mistaken in the transcribing of it yet the Postea may be amended Paso 24. Car. B. r. A Declaration grounded upon an Original Writ if it be erroneous cannot be amended but if it be upon a Latitat or Bill of Middlesex it may be amended Pasc 24. Car. B. r. If a Transcript of a Record removed out of the Common Pleas into this Court be to be Amended here the Clerk in the Common Pleas is to bring in the Original Record out of the Common Pleas into this Court that the Transcript may be here Amended by the Record it self Trin. 24. Car. B. r. The Clerk of the Assizes may Amend the Postea by his Notes if he be mistaken after that he hath returned it into this Court Trin. 24. Car. B. r. An Indictment removed into this Court may be amended the same Term it came in but not afterwards but upon some extraordinary matter Pasc 24. Car. B. r. After the parties have joyned in Demurrer the Demurrer may be Amended if it be but in Paper Pasc 24. Car. B. r. A Postea may be Amended by the Record in such things whereby the Amendment may not bring the Jury within the Compass of an Attaint Trin. 24. Car. B. r. A Record may be Amended in a small matter after Issue joyned so that thereby the Plea be not altred Trin. 24. Car. B. r. A Record may not be altred by the consent of the Atturneys on both sides without a Rule of the Court and if it be if the party grieved thereby will inform the Court of it the Court will order to make the Record as it was before the Amendment and will punish the Atturneys 3 July 1650. B. S. If the Plaintiff Amend his Declaration though it be by Rule of the Court yet the Defendant may plead do nove The Imparlance Roll cannot be Amended by the Plea Roll but the Plea Roll may be Amended by the Imparlance Roll Mich. 22. Car. B. r. The Court Amends false Latine forme in Bills presented unto them by the grand Enquests by their consents but they may not alter matters of substance in them Mich. 22. Car. B. r. The Plaintiff may Amend his Declaration after the Defendant hath pleaded to it paying costs if it be not entred but if he do Amend it the Defendant may also after his Plea if he will Mich. 22. Car. B. r. And Issue entred upon Record may upon leave by the Court be Amended in a small matter but not in a material thing or in that which will deface the Record Hill 22 Car. B. r. An Original Writ cannot be Amended because the party may take out another Writ Hill 22. Car. B. r. A thing that is Amendable by Statute may be Amended in an upper Court before it be Amended in the inferior Court if the matter be apparent and needs no examination Hill 22. Car. B. r. An Error in the Postea may be Amended but not in the Plea Roll Hill 23. Car. B. r. A Plea cannot be Amended after the Plea is Demurred unto not after Issue joyned Mich. 24. Car. B. r. yet if the Demurrer be but in Paper though it be two or three Terms after the Plea was Demurred unto the Demurrer may be Amended if the party Demurring will pay costs though the other party have joyned in Demurrer 21. Nov. 1650. B. S. A Return of a Habeus Corpus may be Amended in matter of form onely the same Term the Return was made but not
award do make an end of all the differences submitted unto the Arbitrators by the parties Trin. 23. Car. B. r. Mich. 24. Car. B. r. An Award ought to be final and certain else it is not good Mich. 23. Car. B. r. If each party submitting to the Award hath power by the Award to compell the other party either by Law or equity to perform the Award the Award is good although the party be thereby put to his Action Mich. 24. Car. B. r. An Award that a thing shall be done to a stranger is a good Award if it appear that the parties who submitted to the Award have benefit by the doing of it Pasc 1650 B. S. 4. Junii If an Award be good in any part of it to all the parties that did submit to it if the Award be broken in that part an Action will lie for that breach Pasc 1650 B. S. 4. Maii. An Arbitrator cannot delegate or transfer the power given him by the parties that submitted to the Arbitration for it is contrary to the submission but an Arbitrator may refer a Ministeral act touching the Arbitration to another Trin. 1650. B. S. 15. Junii The Court will not suppose any thing to be Awarded in an Award which is not submitted unto except the Contrary be made to appear 10. Feb. 1650. B. S. Affirmance It is not proper to move to have a Judgement affirmed after a Writ of Error bought to Reverse it before the Errors be Assigned but one may move for Execution upon the Judgement 22. Car. B. r. Agreement A forced Agreement of the party is accounted to be no Argeement and therefore the Court will not compell him that did thus agree to a thing to perform his agreement 22. Car. B. r. An agreement which is made between the parties onely by Paroll may be discharged and made void at any time before it is broken by Parol without satisfaction but after it is broken it cannot be discharged without satisfaction of it 22. Car. B. r. If an Agreement made by Parol to do any thing be afterwards reduced into writing the Parol agreement is thereby discharged and if an Action be to be brought for the non performance of this agreement it must be brought upon the agreement reduced into writting and not upon the Parol agreement Pasc 23. Car. B. r. The Plaintiff and Defendant may by agreement between them give mony to the Jury before they pass upon the tryal to defray their charges where the tryal is put off and thereby they are forced to stay longer in Town then they expected Mich. 1649. B. S. Agreement By Rolle Chief Justice If the Plaintiffs Atturnoy and the Defendants Atturney do agree to things in order to the proceedings in their Clyents cause though the Clyents do afterwards refuse to consent to their agreement yet the Court will compell the Atturneys to perform the agreement Atturnment An Atturnment made unto Cestuy que use is a good Atturnment in Law to the Feffee of the Land if the Tenant of the land have notice of the use when he did Atturn Tenant to Cestuy que use Mich. 22. Car. B. r. An Atturnment made after Sun-set is not a good Atturnment for an Atturnment is a solmne act and ought to be done so that notice may be taken of it which shall not be presumed to be in the night Mich. 23. Car. B. r. Assumpsit or Promise A promise that is made upon a sufficient consideration is as if it were made upon a precedent condition Mich. 22. Car. B. r. An Assumpsit or promise to do a thing upon consideration that he to whom he made the promise shall surrender an indenture to him is a good consideration to ground an Action upon for breach of this promise although he to whom the Indenture is surrendred do take no estate by this surrender Mich. 23. Car. B. r. If one upon a good consideration do assume or promise to do a thing he that promised to do it shall have a reasonable time allowed to him for the doing of it and shall not have liberty to do it at any time during his life Hill 22. Car. B. r. Where an Assumpsit or promise is the very ground of the Action brought there it must be pleaded precisely but where it is but the inducement to the bringing of the Action there it is not necessary to set forth the promise precisely in the pleading Pasc 23. Car. B. r. Every contract made betwixt parties doth in Law imply a promise that they will perform the contract Hill 1649. B. S. 4. Feb. He for whose benefit a promise is made may have an Action for the breach of this promise although the promise was not made to him Pasc 23. Car. B. r. The consideration to stay his proceedings in a Suit in Law is a good consideration to ground an Assumpsit Trin. 23. Car. B. r. viz. for ever or for a certain time But if he promise to stay Paululum tempus it is not good If one part of the consideration upon which a promise is made to do a thing be against the Law and so void yet if another part of the consideration be good and lawful the consideration is good to ground an Assumpsit upon for the consideration may be divided and if any part of it be good it is sufficient to make the promise good Mich. 23. Car. B. r. An Assumpsit grounded upon a consideration which was past before the promise made is a good Assumpsit if it be alledged to be made at the instance or request of the Defendant Psac 24. Car. B. r. After a promise is broken the party that made this promise cannot be discharged of this promise by Parol but where the promise is executory the may Pasc 24. Car. B. r. Where one becomes legally indebted to another the Law creates a promise that he will pay this debt and if he do not pay it there is a sufficient ground for the party to whom he is indebted to bring his Action of Indebitatus Assumpsit against him to recover this Debt Trin. 24. Car. B. r. If the day of an Assumpsit made be pleaded in figures and not in words at length it is erroneous Pasc 24. Car. B. r. If an Action be brought upon an Assumpsit and upon proof it doth appear that the agreement was more or that it was less in substance then the Plaintiff hath declared upon he hath failed in laying of his Action otherwise it is if some circumstance only be omitted Mich. 24. Car. B. r. In an Action brought upon a promise it is usual to ground the Action upon one promise in the substance of it but to lay the promise divers wayes and by different words in the Declaration to the intent that upon the tryal the Plaintiff may rest or rely upon that way of laying it that his witnesses are best able to prove Mich. 24. Car. B. r. If one be indebted to another and do promise to pay
satisfaction the Law will not intend that he is damnified and so he hath no Cause of Action When the Court doth order one to plead presently it is to be understood that he shall plead in such convenient time after as the Court shall judge reasonable Mich. 22. Car. B. r. The Defendant may amend his Plea although it be three Terms after it was pleaded if he will pay Costs Mich. 22. Car. B. r. But it must be by leave of the Court because it is against the common Rules of practice Although a Plea do contain divers matters in it upon which an Issue may be taken yet this Plea is not double if the Plea could not have been good without alleadging all those matters in it Mich. 22. Car. B. r. For though the Law doth not allow captious Pleas yet it doth not deny the Defendant to plead all such matters that his Case affords for his just Defence If the Defendant Plead an insufficient Plea and there is a good Issue joyned upon that Plea and a Verdict given upon that Islue for the Defendant the Plaintiff shall not afterwards take advantage of the insufficiency of the Plea Mich. 22. Car. B. r. For it was his own sault to joyn Issue upon it when he might have demurred upon it Where one Pleads Letters of Administration which are granted by such an ordinary whereof the Law doth take notice he may Plead that they were granted unto him debito more but if they be granted by an inferior ordinary of whom the Law doth not take notice of he must Plead that they were granted unto him per ordinarum illius loci Mich. 22. Car. B. r. That the Court may the better Judge whether they be well granted in regard of the power of the ordinary that granted them or not If the Plaintiff do alter his Declaration after the Defendant hath Pleaded to it the Defendant may alter his Plea Mich. 22. Car. B. r. For by the amendment of it it may be so altered in matter that it mâ—y require a different answer from what was formerly Pleaded and in that case if he should not amend his Plea he might be triced for want of a good Plea In an Appeal brought all the Pleadings ought to be in French Mich. 22. Car. B. r. Because the Statute which enacted that all Pleadings should be in Latin extends not to this Action and so the Pleadings therein are to be in French as all Pleadings were before that Statute But now by the late Act they are to be in English Q. Tamen Whether that Act do extend to this Action or onely to such Pleas as were formerly in Latin When the Court doth order that the Defendant shall Plead it is intended that he must Plead an Issuable Plea Mich. 22. Car. B. r. For the rule is made to quicken the Defendant that the Plaintiff be not delayed by his Dilatoriness and if he might Plead a Dilatory Plea and not issueable the rule would be to no purpose The Court will not upon a motion rule the Defendant to Plead peremptorily by a day before the common rules of the Court for Pleading be out but then they will Mich. 22. Car. B. r. For till then it cannot be said that the Defendant hath delayed the Plaintiff If a Scire facias upon a Recognizance be brought against an Infant he cannot Plead Infancy or nonage to it but he must bring his audita querela and set forth his case therein and thereby his age shall be tryed by the Courts inspecting of him and not by a Jury Hill 22. Car. B. r. If the Plaintiff do release his cause of Action to the Defendant yet the Court will not upon a motion stop the Plaintiffs proceedings in the Action but the Defendant must Plead this release Hill 22. Car. B. r. In bar of the Action for the Court cannot take notice of the release upon a motion It is not a good Plea to Plead a Paroll agreement in bar of an agreement made by indenture between the parties Hill 22. Car. B. r. For an agreement by Indenture is a more solemn agreement and of a higher nature then a Paroll agreement and must be discharged by some act of as high a nature as it is A double Plea is such a Plea that one Issue cannot determine all the matter issuable that is contained in it and also where the Defendant is put to a double answer Hill 22. Car. B. r. And such a Plea is not a good Plea If the Defendant do Plead a frivolous Plea to the intent to delay the Plaintiff and to hinder him from going to a tryal the Court will upon the Plaintiffs motion order the Defendant to plead such a Plea as he will stand to or else to accept of a Demurrer from the Plaintiff unto his frivolous Plea Hill 22. Car. B. r. For it is the Justice of the Court to speed the proceedings in Law and to bring suits to determination as soon as with conveniency and Justice to all parties it may be done By the course of practice in the Court of Common Pleas the principle in a Bond may Plead for his Suerty without his leave or knowledge and acknowledge a Judgement upon the Bond but this Court doth judge it hard practice and will not allow it to be don here Pasc 23. Car. B. r. Now it is said they do not allow it there The practice seemed hard in this respect that the Suerty who intended onely to be bound that the principal should pay the Debt should by the falsity of the principal be presently liable to an Execution for the Debt and be enforced to pay it Where the Defendant may plead the general Issue he ought so to Plead that the whole matter in question may come to be tryed Pasc 23. Car. B. r. For else the Plea is not good because it tenders not such an Issue whereupon the cause depending may be determined which every Plea ought to do for to Plead otherwayes is to no purpose If one bring an Action upon a contract it is a good Plea in bar for the Defendant to Plead quod exoneravit se de Contractu Pasc 23. Car. B. r. For it sounds all one as if he had Pleaded that he hath performed the agreement A Concord by Paroll is no good Plea in bar to an Action brought upon a single Bill which is not penall Pasc 23. Car. B. r. For bare words are not of so great force as agreements put in writting Every Plea must be Pleaded either in bar to the Action brought or in abatement of the Writ upon which the Action is framed otherwise it is but a discourse and not a Plea because the Plaintiff cannot take an Issue upon it and therefore if the Plaintiff do demur upon it and his demurrer be adjudged good he shall have Judgement against the Defendant Pasc 23. Car. B. r. Anciently all Pleadings were in French then by the Statute it was Enacted they should be in
cause proceeded in be entred Mich. 1649. B. r. For not till then the Record is made perfect An appearance will help a miscontinuance of Process 9. Nov. 1650. B. S. The bringing of a Writ of Error is a continuance of the Action 10 Feb. 1650. B. S. Hill For the Action is not determined by the Judgement if a Writ of Error be brought but is still depending for the Judgment it may be may be reversed If a cause to be spoken to in Court be entred into the paper of causes for the day in the Office although it be not put into the paper of the causes of the day delivered to the Judges yet the Court will proceed in them if they be enformed of it Trin. 1651. B. S. For it was but a mistake of the Clerk and it may be Councel on both sides are entertained for that day to speak in it Upon a Verdict or a Demurrer sometimes the continuances in the cause are not entred until after a Writ of Error be brought Pasc 1652. B. S. Miscontinuance of Process is where one Process is used for another Process viz. a wrong Process in stead of a right Trin. 1652. B. S. Provisoe A Provisoe in a Deed which sounds in Covenant is Collateral 21. Car. B. r. That is a Provisoe which is so penned that it implies a Covenant in it for there is difference betwixt a Provisoe and a Covenant of a Deed for a Provisoe doth often go by way of destruction of the whole Deed or some part of it or of the estate created by it but a Covenant alwayes stands with the Deed and onely an Action lyes upon the breach of it A tryal by Provisoe was ordained by the Statute to the end that the Defendant might free himself of suits brought against him by trying the issue depending betwixt him and the Plaintiff in case the Plaintiff doth not try it as he ought which he may do the next Term after the Plaintiff should have tryed it or at any time after that when he pleaseth Hill 22. Car. B. r. If a Provisoe in a Deed be insisted upon at a tryal to destroy the Deed in which it is there must be punctuall proof that the thing provided to be done or not done was done or was not done according as the Provisoe directeth Mich. 1650. B. S. For the Law doth not favour the destruction of Deeds or estates but doth favour the supporting and maintenance thereof as much as may stand with the rules of Justice Pledge The Plaintiffs Pledges that he shall prosecute 〈◊〉 suite may be entred at any time pending the suit Trin. 22. Car. B. r. For the putting in of Pledges is now but a meer formal thing but what was the ancient use of putting them in Q. Pardon A general Pardon doth discharge not onely the punishment which was to have been inflicted upon the person of him that did commit the offence Pardoned but also the guilt of the offence it self Mich. 22. Car. B. r. A Pardon may dispence with the burning in the hand of a person that is convicted for Felony but without a Pardon it may not b◠dispensed withall Pasc 23. Car. B. r. The words Pardonavit remisit relaxavit in a Charter of Pardon granted to one for Felony do not restore unto him the goods which he forfeited to the King by his Felony but the word restituit in the Pardon doth restore him to his goods Trin. 23 Car. B. r. For the former words go but only to the Pardoning of the offence but the latter to restoring to the estate forfeited by the Felony A Pardon for treason cannot be pleaded untill the prisoner be charged with the Endictment for the offence committed Pasc 24. Car. B. r. For before he is charged by the Endictment it doth not appear to the Court that he is the person that is pardoned by the Pardon If one have a Charter of Pardon for Felony committed by him the Court ought to allow it upon the prayer of the party that hath it but he must produce it at the Bar and pray upon his knees that it may be allowed 13. Nov. 1650. B. S. And so it was then done in one Goffs case A general Pardon doth Pardon publicke offences done to the Commonwealth but it doth not Pardon private injuries done to particular persons Pasc 1652. B. S. Postea The Postea is the issue or record engrossed in parchment upon which a tryal is had and which is afterwards to be entred in the roll of the Court where the Action tryed was brought when the party enters his Judgement upon the Verdict had at the tryall Mich. 22. Car. B. r. It is called the Postea from the word Postea which begins that which is entred by a Clerk of Assize upon the record that was tryed after the tryal setting forth that Postea that is afterwards after the issue joyned at such a day and place and before such a Judge the Plaintiff and Defendant came c. to hear Judgment that is to try the cause and hear the Verdict and so sets forth the tryal particularly and the Verdict The Court may stay the Postea not suffering the party to enter Judgement upon his Verdict if they find cause to do it Mich. 22. Car. B. r. viz. For undue proceedings in the tryal The Defendant hath four dayes by the rules of the Court to speak in arrest of Judgement after the Postea is brought into the Court and if the party for whom the Verdict passed will not bring it in upon notice given to him by the other party that he intends to move in arrest of Judgement the Court upon a motion setting forth this matter will order Judgement to be stayed untill four dayes after it shall be brought in There is no general rule of Court for the Clerk of the Assize to bring in the Posteas into this Court by a percise time but if he be negligent and return the◠not in convenient time the parties grieved may more the Court and thereupon the Court will make a rule that he bring them in speedily Mich. 22. Car. B. r. If the Clerk of the Assize have mistaken himself in drawing up of the Postea he may amend it by his notes which he took and drew it up by although it be returned Trin. 24. Car. B. r. But it must be before it be filed for then it is a record of this Court After the Postea is entred upon record and the record hath been read in Court in order to the speaking to some matter in Law in it the Atturney in the cause ought not to have the Postea any longer in his custody but it ought to remain in Court Trin. 24. Car. B. r. The Defendant may give rules in the Office for the Plaintiff to bring in the Postea and if he will not do it he shall be non-suite 18. Nov. 1650. B. S. For though he have a Verdict yet he hath no Judgement and so his
the cattel Mich. 23. Car. B. r. For one shall not be made a Trespassor against his will If a person or goods be rescued out of the hands of the Sheriff which he hath taken in Execution by vertue of his Office it is at his election to bring an Action upon the Case or an Action of Trespass vi armis against him that made the rescous Hill 23. Car. B. r. If one bring a meer Action upon the Case he may declare omitting the words vi armis but if the Action be a bare Action of Trespass there he must declare that the Trespass was committed vi armis Mich. 24. Car. B. r. For an Action of Trespass doth implye a breach of the peace and a capiatur is to be entred in the Judgement against the Trespassor for his fine to the King but in an Action upon the Case it is otherwise for there the Judgement is that the Defendant shall pay the dammages and be in misericordia Trespasses of several natures cannot be laid together in one Action Mich. 24. Car. B. r. Upon a recovery of Lands in an Action of Treft pass and Ejectment the Plaintiff may afterwards bring an Action of Trespass against the Defendant for the mean profits of the Land So it was held in the case between Wilmot and Holden Trin 1652. B. S. The mean profits are such profits of the Land as did grow due betwixt the time of the bringing of the Action and the time of the recovery An Action doth lye at the Common Law for the person for taking away of Tithes after they are severed from the Land Mich. 24. Car. B. r. To wit against the occupyer of the Land Q. tamen Tales Upon a Tryal at the Bar if the Jury do not appear full the Court cannot grant a Tales de circumstantibus but the Court upon a motion will grant a Tales returnable in some convenient time the same Term to try the cause Mich. 22. Car. B. r. 1650. B. r. For the Statute doth not extend to tryals at the Bar which did enable the making of a Tales A Tales de circumstantibus are so many persons which are returned to serve on Juries to supply the places of those that did not appear A Corporation Court cannot grant a Tales Pasc 23. Car. B. r. For the Statute doth not extend unto Corporations A Tales is not to be granted where the whole array or Jury is challenged for want of Hundreders but in such case the whole pannel if the challenge be made good is to be quashed and a new Jury is to be returned Mich. 1650. B. S. For a Tales consists but of some persons to supply the places of such of the Jurors as wanted of the number of twelve and is not to make a new Jury If the Sheriff take Bail of one for his appearance who is not Bailable by Law although the party do not appear an Action doth not lye against the Sheriff but the Plaintiff must proceed against the Sheriff by way of amercements Mich. 1650. B. S. 26. Nov. For in regard that the Sheriff ought not to have taken Bail though he have taken it yet it shall be accounted as if he had not taken Bail Terms The Issue Terms are Hillary Term and Trinity Term onely the other two Terms are not so called and the other Issue Terms are so called because in them are the Issues joyned and made up which are to be tryed at the Lent Assizes and the Summer Assizes which do immediately and respectively follow them Hill 22. Car. B. r. The four dayes in Term are the day of 1. Essoigne 2. Exception 3. Appearance 4. Return Hill 22. Car. B. r. All the Term in construction of Law is accounted but one day and therefore a Plea that is put in the last day of a Term is a Plea of the first day of the Term. Trin. 23. Car. B. r. Mich. 1649. B. S. The Term is said to begin upon the first Essoign day which is three dayes before the Courts of Justice do sit and not at the first day of sitting of the Courts Trin. 24. Car. B. r. Because some businesses of that Term do begin at that time The same day of the week that Michaelmas Term doth end the same day Hillary Term doth begin By Woodward Clerk of the Court Hill 24. Car. B. r. Toft and Croft A Toft is a place where an old house did formerly stand and it also signifies a decayed house not inhabited Pasc 23. Car. B. r. A Croft is a small peices or close of Land that lyes neer a dwelling house Pasc 23. Car. B. r. Trover and Conversion Where the Trover of goods is one County and the Conversion is in another County the Action brought for these goods may be laid in the County where the Conversion was for the Conversion of the goods is part of the cause of the Action Pasc 23. Car. B. r. For the very name of the Action is called a Trover and Conversion and not a Trover onely and the Action is brought as well for the Defendants converting of the goods to his own use as for the finding and deteyning of them Two causes of Action for a Trover and a Conversion cannot be joyned in one Action Trin. 23. Car. B. r. An Action of Trover and Conversion may be brought for goods although the goods for which the Action is brought do come into the possession of the Plaintiff that brings the Action before the Action brought Pasc 1651. 22. Ap. B. S. For the coming of the goods into his possession before the bringing of the Action for them doth not purge the wrong or make satisfaction for that which was done to the Plaintiff by the finding and converting the goods and so he hath still cause of Action although his dammages may not be very great Trust The Chancery will compell one to perform a Trust which he hath taken upon him except it be a Trust taken upon him for the benefit of an Alien Pasc 23. Car. B. r. For to compell that might in many cases prove prejudicial to the Common Wealth and repugnant to the Common Law The way of making conveyances by way of Trust was invented to evade the Statute of uses Pasc 23. Car. B. r. Cestuy que trust cannot take the profits of the Land setled by the Trust but hath onely his remedy for them in equity for the estate in the Land is onely in the party that hath the Trust Trin. 23. Car. B. r. Tenure Lands which are granted by the King to hold of him of his Manor of East Greenwitch in Kent in capite is a Tenure in Sorage and the words in capite in the grant are voide Trin. 23. Car. B. r. For those words are repugnant to the Tenure created by the grant Tender A Tender of Rent to save the forfeiture of a Lease ought to be a Tender of the whole Rent due at the time of the Tender without any deduction of Taxes of
adjoyning in repaire for thereby he claims particular interest in it 1651. B. S. Wager of Law The Defendant cannot Wage his Law in an Action which doth arise upon a realty but onely where the Action is personal Trin. 22. Car. B. r. And therefore if an Action be brought for the Arrerages of rent the Defendant cannot Wage his Law for the Rent doth arise out of the Land and Sounds in the realty The manner of Waging of Law is this He that is to Wage his Law stands at the end of the Bar towards the right hand of the Chief Justice and the Secondary askes him whether he will Wage his Law if he answers that he will the Judges admonish him to be well advised and tell him the danger of taking a false Oath and if notwithstanding he persist then the Secondary speaks words to the effect following unto him and he that Wageth his Law doth repeat every sentence distinctly after him Hear ye this ye Justices that I W. S. do not owe to B. B. the sum of naming the sum in the Declaration nor any penny thereof in manner and form as B. B. hath declared against me So God me help and then he kisseth the book But before he takes the Oath the Plaintiff is called by the Cryer thrice and if he do not appear then the Defendant goes quit without taking his oath but if he appear then he must take his oath and then he is discharged without pleading Mich. 22. Car. B. r. Because if the Plaintiff do not appear to hear the Defendant perform his Law he is non-sute Pasc 24. Car. B. r. The reason why Wager of Law is suffered is because the contract upon which the Action is brought being a private contract and not to be proved it may be intended that the discharge may be in private and not to be proved otherwise then by the Oath of the party whom the Law will not presume will take a false oath Hill 1649. B. S. 31. Jan. If one bring an Action of Debt upon a concessit solvere as it is used to be done in Bristol and some other places the Defendant may Wage his Law Hill 1650. B. S. 5. Feb. If the Defendant do tender his Law in Court and is ready to perform it and the Plaintiff being called doth not appear he shall be non sute and pay costs but then he may bring another Action for the Debt if he please but if the Plaintiff do appear and the Defendant doth make his Law then the Plaintiff shall never bring another Action for that Debt but shall be barred for ever Mich. 1650. B. S. 22. Nov. For it is as much as if a Verdict passed against him Words A Latin word used in pleading which word doth signifie divers things is nevertheless well used to express that thing which is intended to be expressed by it if there be an Anglice joyned with it Hill 21. Car. B. r. For by the word Anglice it is explained what the party doth intend it shall signifie in English This was more useful to be known when all pleadings in Law were in Latin Words which may be taken or interpreted in a general and common sence ought not to receive a strained and unusual construction Hill 21. Car. B. r. For it is likely the party that used them had a plain and common meaning in them and not a strained and unusual Words which are in themselves uncertain may nevertheless be made certain by subsequent or following words Mich. 23. Car. B. r. Although Words were not Actionable in themselves at the time of the speaking of them yet if an Action be brought for the speaking of them they may be made Actionable by the Defendants pleading by justifying of the Words Mich. 22. Car. B. r. For it may be that in such his justification he may explain in what sence he spake them which did not appear plainly before These Words you are a Knave spoken generally will not bear an Action but if one call another Knave and apply the words particularly to the profession of him against whom they are spoken as to call an Atturney at Law Knave and to apply it specially to him in relation to his practice as an Atturney an Action upon the Case will lye for speaking of them Hill 22. Car. B. r. For by the application of them they import a special dammage done to the party by the speaking of them A word which is written short or abreviated without a dash is not good Hill 22. Car. B. r. For the dash or turning up of a stroke or dash with a pen at the end of it is the general mark or signe to distinguish an abreviated word from a word written at length Incertain words in the Count or Declaration may be made good and certain by a plea in Bar. Hill 22. Car. B. r. To wit by the Defendants taking notice of the meaning of them in his plea. The different placing of the same words may cause them to have a different sence or construction Pasc 23. Car. B. r. The Court ought so to order the words of a Will that they may receive such a construction that may agree with Law although by their misplacing they cannot receive such a construction Pasc 23. Car. B. r. Vt res magis valeat quam pereat Words in a Will as they may be diversly penned may either destroy a condition or create a condition where there was none before Pasc 23. Car. B. r. Morage of a Ship is when the Ship lies on the ground in the More Mire or Mudd within a Haven or Harbor and doth not float upon the watter Pasc 23. Car. B. r. The Ansty of the City of York is that part of the County of the City which extends without the City and is a hundred which is within the jurisdiction of the City and was added to it by Act of Parliament Pasc 23. Car. B. r. The word relaxavit doth not amount to a surrender in the case of a common person much less in the case of the King Trin. 23. Car. B. r. But it amounts onely to a release which differs much from a surrender as appears by Litleton in his tenures The word interest for borrowing of money shall be intended eight pounds a year per centum if the contrary be not shewed Trin. 23. Car. B. r. This was when money was at eight in the hundred but now it shall be intended six pound in the hundred The words of a Statute ought not to be so interpreted that thereby natural Justice will be destroyed Hill 23. Car. For it is not the intent of any particular Law of a Land or Nation to destroy the general universal Law of nature The word Simul is not a word copulative when it is joyned with the word et Trin. 24. Car. B. r. But Simul cum are words copulative Where there is a Latin word in a Declaration which is falsely Englished the English word shall be adjudged void
The Court did take Bail for a prisoner against whom an Appeal of murther was brought because that he did not flee for the murder supposed and had been formerly Indicted for this murder and acquitted upon the Indictment Mich. 22. Car. B. r. Vpon which presumptions they conceived he was not guilty else would not have Bailed him Bail peices are small pieces of Parchment in which is written the substance of the Bail and are filed in the Office of the Court besides the Bail that is filed upon Record Mich. 22 Car. B. r. And are made at the Judges Chamber usually before whom the Bail is taken If the Plaintiff require special Bail he ought to shew his cause of Action before the Judge that takes the Bail or else to declare against the Defendant that it may appear to the Court that there is cause why special Bail should be given otherwayes common Bail is to be filed and if he will not declare against the Defendant till after three Terms then by the course of the Court he must take common Bail what ever the cause of Action be Hill 22. Car. B. r. Trin. 24. Car. 1650. 22. Junii Where one is sued as an Executor he is not compellable to put in special Bail but in case of a Devastavit for wasting the goods of the Testator or where the Action is brought for something done by him since he became Executor Hill 22. Car. B. r. If an Action be brought against Husband and Wife and the Husband is onely Arrested yet the Husband must put in Bail for his Wife if the name of the Wife be in the Writ else he is not bound to put in Bail for her Hill 22. Car. B. r. For it is the Writ that warrants the Bail One may deposite a sum of mony in Court in lieu of Bail if the Court please and they may thereupon order the Plaintiff to waive other Bail 22. Car. B. r. Trin. 23. Car. B. r. If the Defendant do render his body in custody in discharge of his Bail the Plaintiff ought by the Rules of the Court to make his choice whether he will proceed afterwards against the Principal or the Bail Hill 22. Car. B. r. After the Roll is marked to have special Bail common Bail ought not to be entred but if the Roll be not marked for special Bail common Bail may be entred Hill Car. B. r. One that stands Indicted for Felony or for Forgery ought not to be Bailed untill he have pleaded to the Indictment Pasc Trin. 23. Car. B. r. For the parties shall be conceived to be guilty of the Crimes untill they plead If one be committed to prison by the House of Commons in Parliament the Court will Bail the party if in respect of his Fact he is Bailable in Law Pasc 23. Car. B. r. The Court will not Bail one that appears in Court upon the Return of his Habeas Corpus before they have considered of the Return to enform themselves whether he is Bailable by the Law or not Pasc 23. Car. B. r. One committed by a Justice of Peace upon the Statute for having of two Wives and appearing in Court upon the Return of his Habeus Corpus was Bailed upon the prayer of his Councel Trin. 23. Car. B. r. Where the not filing of common Bail will make Error in the Record there the Court will compell the Plaintiff to accept of it Trin. 23. Car. B. r. One that is within Age is not to be admitted to be Bail for another Trin. 23. Car. B. r. For he is not a person of himself responsable at the Law One committed for Felony and brought into this Court by his Habeas Corpus may not be Bailed with less then four Suerties Hill 23. Car. B. r. For the Crime being Capital requires exttraordinary Bail One Judge alone will not take Bail of a prisoner that appears upon his Habeas Corpus Pasc 24. Car. B. r. The putting in of a Declaration and the acceptance of it by the Defendants Attruney with the privity of the Plaintiffes Atturney is counted an acceptance of the Bail Hill 23. Car. B. r. 1650. Pasc 14. Maii. If a priviledged person in this Court do bring an Action against another in this Court he ought by the course of the Court to have special Bail put in to his Action Hill 23. Car. B. r. Whether there be cause for special Bail or not This I suppose is ex gratia Though one be Assigned by the Court to be of Councel on Record for a prisoner that stands Indicted of Felony yet he ought not to move to have the prisoner Bailed Pasc 24. Car. B. r. For he must not move for things against Law One that is Out-lawed ought not to be Bailed untill either the Out-lawry be Reversed or else he hath brought a Writ of Error to Reverse it Pasc Car. B. r. For an Out-lawed person is to receive no favour in the Law One single Judge in Court will not Bail a prisoner in a difficult case but will advise with his Companions Pasc 24. Car. B. r. One that is in Excution in custody of the Marshall of this Court is not compellable to find Bail if another Action be brought against him but if he be in the prison of the Fleet in Execution and an Action be brought against him in this Court he must either be removed and committed unto the custody of the Marshal of this Court or else he must put in Bail to the Action Trin 24. Car. B. r. Before a Supersedas be issued forth upon a Writ of Error brought he that brings the Writ of Error ought to put in special Bail to pay what shall be due if the judgement be affirmed Trin. 24. Car. B. r. It is not sufficient for the Plaintiffs Atturney onely to mark the Roll for special Bail but he ought also to give the Defendants Arturney notice that special Bail is required to the Action Mich. 24. Car. B. r. For the Roll may be marked without notice and so he know nothing of it and plain practice is alwayes the best If the Judgement be Reversed by a Writ of Error which was given against the principal there may be a special Writ taken out to discharge the Bail Mich. 24. Car. B. r. Bail is to be accounted good Bail which is taken de bene esse and before it be filed until it be questioned and disallowed Mich. 24. Car. B. r. Upon examination of it before the Judge Hill 1649. 11. Feb. Bail is so called because the party Bailed is delivered by the Law into the custody of those that are his Bail and who are to answer the party if they do not produce the principal to do it Trin. 1650. B. S. 15. Junii It is derived of the French word Bailler to deliver a thing to another If the Plaintiff do not declare against the Defendant in three Terms after Bail is put in the Bail is not chargeable Trin. 1650. 2. Julii
to give notice of the Lease to the Tenant or Undertenant of the Land in question Hill 23. Car. B. r. For the possession of the Land is primarly in question in this Action and is to be recovered and not the title of the Land though the title of the Land do come in question and is tryed collaterally But now by the new way of practice it is not usual to Seal any Lease of Ejectment at all in an Action of Trespass and Ejectment but the Plaintiff that intends to try the title delivers a Declaration to an Ejector of his own making and that Ejector sends or delivers the Declaration to to the Tenant in possession who gives notice thereof to his Lessor whose title is concerned to defend the title and if neither the Tenant in possession nor his Lessor will defend the title then the Ejector will confess a Judgement to the Plaintiff and so the Tenant will be stripped out of possession but if they or either of them will defend the title then it is usual for them to move the Court that they may be made Ejector to defend the title which the Court will grant if they will Consess Lease Entry and Ouster at the tryal and stand meerly upon the title and if at the tryal they do not then Judgement to be entred against the Plaintiffes Ejector If one do do occupy the Lands in question in an Action of Trespass and Ejectment after the Ejectment Lease made to try the title of the Land is Sealed this is an Ejectment in Law of the Lands in question Trin. 22. Car. B. r. For the keeping of possession of the Lands against him to whom they are let by the Lease doth amount to an Entry upon him although he was never in possession of the Land let If there be two Ejectors made in an ejectione â—irmae one of them may be found guilty of the Trespass and Ejectment and the other as the case may fall out may be acquitted Trin. 22. Car. B. r. An Ejector in Law is any person that comes upon any part of the Land c. in the Ejectment Lease although it be by chance and with no intent to disturbe the Lessee of the possession next after the Sealing and Delivery of the Ejectment Lease and such an Ejector is a good Ejector to bring an Action of ejectione firmae against to try the title of the Land in question Mich. 22. Car. B. r. 1650. B. S. And there is no prejudice to any person by having such an Ejector He that is to try a title of Land by an Action of Trespass and Ejectment ought not to make an Ejector of his own against whom he may bring his Action or to consent or agree with one to come upon the Land let in the Ejectment Lease with an intent to make him an Ejector and to bring his Action against him Mich. 22. Car. B. r. For by that means the Tenant in possession of the Land was often put out of possession by a Writ of habere facias possessionem without any notice given either to him or his Lessor of the Suite But now this is altered by the new way of practise formerly mentioned In every ejectione firmae the Plaintiff ought to set forth in his Declaration in what Parish the Lands in question do lie that the venue may be from the place where the Lands do lie and not from the body of the County except it be when as the Lands in question do not lie in any Vill or Hamlet Mich. 22. Car. B. r. Or lieu Conus for in all such causes it is of necessity that the Jury be of the body of the County because there is not any more particular place from whence the venue may come If one doclare upon a Lease in an ejectione firmae and that by vertue of that Lease he was in possession of the Lands thereby let unto him untill that he was Ejected by the Defendant it is supposed that the Lessor that made the Lease unto him was alive at the time when he brought his Action Mich. 22. Car. B. r. An Ejectment or an Ouster is either an actual Ejectment as when the Lessee is actually put out of the Land let unto him or else it is an Ejectment by implication of Law Pasc 22. Car. B. r. An ejectione firmae ought to be brought for a thing that is certain and not of an incertain thing Pasc 23. Car. B. r. For if the thing be uncertain the Sheriff cannot if the Plaintiff recover know of what to deliver the possession upon the Writ of habere facias possessionem If the Plaintiff in an ejectione firmae do declare for a house lying in two Parishes if the house do lye in either of the Parishes and do not lye in both of them yet is the Declaration good Pasc 23. Car. B. r. For there is certainty enough in it Although in an ejectione firmae there be a Verdict and a Judgement against the Plaintiff yet the Plaintiff may bring another Action of Trespass and Ejectment for the Land Trin. 23. Car. B. r. He may bring divers Actions one after another if he please for a Judgement in that Action is not final By Rolle Chief Justice It is doubtful whether an ejectione firmae do lie de uno crofto Trin. 23. Car. B. r. For the incertainty of the word Croft what it is and what it doth contain If a Lease of Ejectment to try the title of Lands in the possession of I. S. be made to one and after the Lease is made the Wife of I. S. or the servant of I. S. do keep the possession of the Land for I. S. and I. S. do after this occupy the Land I. S. is an Ejector against whom an Action may be brought to try the title of the Land Mich. 23. Car. B. r. 24. Car. B. r. Pasc One who hath title to the Land in question in an ejectione firmae may upon motion to the Court be made a party to the Action that he may thereby defend his title if he will confess the Lease Entry and Ouster Hill 23. Car. B. S. Vid. Supra If a Lease of Ejectment be made of a house and lands occupyed with it to try the title of them and the wife of the occupyer of the house and land continue in possession of the house after the Ejectment Lease is made she is an Ejector as to the house but not as to the Lands Pasc 1652. He who is in any part of a Messuage viz. in the Barn Stable Stall c. after the Lease of Ejectment Sealed and Delivered to try the title of the Messuage is an Eject or for the whole Messuage Pasc 24. Car. B. r. The owner of the Land may consent with the party that claims the Land to make an Ejector to try the title of it if it be not a plot betwixt him and the Ejector Mich. 24. Car. B. r. viz. To strip the Tenant of the Land in
be warning given to the Defendant of the tryal 1655. B. S. Executor If one be indebted to I. S. in a certain summe of mony and I. S. makes his Will and deviseth this debt due unto him unto A. B. and makes I. L. his Executor and dyes this debt devised unto A. B. must be paid unto I. L. the Executor and not to A. B. the devisee Mich. 22. Car. B. R. For the Executor and not the Devisee can give a sufficient discharge for this debt If a Scire facias be brought against an Executor to shew cause why he should not pay a Debt unto the Plaintiff recovered against the Testator the Executor cannot plead fully Administred but he must plead that no goods of the Testators are come to his hands whereby he might discharge the Debt Mich. 22. Car. B. r. For he may have fully Administred and yet be liable in Law to pay the debt demanded upon the Scire Facias An Executor which hath Administred goods of the Testator as Executor or that is Executor of his own wrong by disposing of the goods of the party deceased without authority given unto him cannot waive a term of years for Land c. of which the deceased dyed possessed of Mich. 23. Car. B. R. For he hâ—th charged himself to be answerable to all persons concerned as far as the deceased parties personal estate will amount unto But if he have not Assets he may waive the Term. Trin. 24. Car. B. r. An Executor of his own wrong is not by Law chargeable for more then the value of the goods of the deceased doth amount unto and which did come unto his hands and with which he hath intermedled Mich. 23. Car. B. r. The word Executor is a word collective and doth comprehend in it the Executor of an Executor Hill 23. Car. B. r. For he is accountable for the first Testators goods An Executor may recover a duty which was due to the Testator although the Executor was not named in the creation of that duty Trin. 24. Car. B. r. For he represents the very person of the Testator An Execut or may be charged upon a Collateral promise made unto the party by the Testator if the promise was broken in the life time of the Testator else not Mich. 149. B. S. And 16. April 1650. B. S. Escape An Administrator may bring an Action of Escape for an Escape suffered of a Prisoner of the Intestate in his life time Trin. 23 Car. B. r. An Escape in one place is an Escape in all places so that for an Escape the party whose prisoner is escaped may bring an Action for this Escape in what County he pleaseth for the Action is not Local or fixt to any certain place Trin. 24. Car. B. r. But transitory Endictment An Endictment that is framed upon a Statute ought to pursue the words of the Statute Trin. 23. Car. B. r. The Justices of Assize will stay the proceedings against a person for a thing done by him during the time of war and in relation to the war Trin. 23. Car. B. r. For Indictments are to be preferred against persons that act any thing in the disturbance of a peaceable and setled Government If any one be perjured in an Affidavit made in any Court of Record touching any Cause depending in that Court an Indictment may be preferred against him for this perjury upon the Statute Trin. 23. Car. B. r. An Indictment of forcible Entry doth not lye upon the Statute of 8. H. 6. against one for entring forcibly into a Copy-hold but an Endictment doth lye in such a Case by the Statute of 21. Jacob. Hill 23. Car. B. r. Although exceptions be taken against an Endictment to the intent the Court should quash it yet the Court will grant time to maintain the Endictment unto the Kings Councel if they desire it Hill 23. Car. B. r. The Court doth not usually quash Endictments for perjury although the Endictments be faulty but will put the party to plead to the Endictment Hill 23. Car. B. r. For perjury is counted a great offence and therefore the Court doth not favour such offenders An Endictment ought to be more certain then common pleadings in Law need to be Hill 23. Car. B. r. An Endictment ought to express the year of our Lord in which it was taken Hill 1649. 30. Jan. B. r. If an Endictment be drawn so generall and so uncertain that the party Endicted cannot tell how to make a certain answer unto it such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If a word be left out in an Endictment which is but onely in matter of form yet the Endictment is good but if be in matter of substance it is not good Trin. 24. Car. B. r. If one be Endicted for doing of any thing for which he is not by the Law to be Endicted for as for the enclosing of a Common or some other Trespas for which an Action at the Common Law is to be brought such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If one do interrupt a long continued possession of Lands by an unlawful means and the person that is so interrupted of his possession do regaine his possession by unlawful means also yet an Endictment of forcible entry doth not lye against him for doing thereof Mich. 24. Car B. r. For the Law favours long possessions and doth not countenance the disturbers of them In most Cases the Endictment for a Fact done ought to be laid in that County where the Fact was done But this holds not in all Cases Mich. 24. Car. B. r. And Mich. 25. Oct. 1650. B. r. If one be Endicted at a Sessions in London or in any other County and the party Endicted do remove the Endictment by a Certiorari into this Court and do not thereupon quash the Endictment the party that did remove it ought by the Rules of the Court to try the Endictment at his own costs the next Term after that the Indictment is removed 13. Nov. 1650. B. S. Exposition The best Exposition of the Starute Law is to be had by the consulting with the makers of them and how they did in their times interpret them Hill 23. Car. B. r. For they knew best for what end they made the Statutes Contemporarea expositio legis est optima The word videlicet in a Deed is put to expound or make plain the premises of the Deed in which it is put and therefore that which it brings in ought not to be contrary to it for if it be the videlicet is void Pasc 23. Car. B r. If all the words of a Deed can stand together without any absurdity the Law will make such an exposition of them that the whole Deed may be good in Law Pasc 24. Car. B. r. Election An Action of Trespas upon the Case or an Action of Trespas vi armis may be brought against one
Plaintiff but by agreement made afterwards betwixt the Plaintiff and him of which the Court doth not take notice except they be moved in it An Obligation cannot be delivered as an escroe unto the Obligee himself but it may be delivered to another to the use of the Obligee as an escroe Trin. 24. Car. B. r. For the very delivery of it to the Obligee himself and his receiving it makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed but being delivered to another to the use of the Obligee it cannot operate so because he is no party to the Deed nor can take any thing by it and doth but only take it as an escree and as an instrument to deliver it to the Obligee at such time and in such manner as the Obligor shall direct and if he deliver it otherwise the Obligor may plead non est factum if he be sued upon it by the Obligee If one be bound unto J. S. in an Obligation of twenty pound to be paid unto J. D. this Obligation is not good Trin. 24 Car. B. r. For to J. S. it cannot be good for the Obligor is not bound to pay him the twenty pound in which he is bound for the solvendum is to J. D. and to J. D. it cannot be good for if he pay him not the twenty pound he cannot sue for it For the Obligor is not bound unto him by the Obligation and so the Obligation is void to all intents If money be not paid according to the Condition of an Obligation the Obligation doth thereby become a single Obligation that is it shall be taken as an Obligation without a Condition for the benefit of the Condition which the Obligor might have taken advantage of by the paiment of the money according to the Condition is lost by the not paying of it and so the Obligation rests in force as if it had no Condition Mich. 24. Car. B. r. An Obligation is a good Obligation although it do want a date Hill 1649. B. S. 8. Feb. For the date is not of the essence of the Deed but the sealing and delivery of it For if the sealing and delivery of it be proved although the time precisely of the doing it cannot be proved yet it is a good Deed. Orders This Court may quash any Orders made at any publick or private Sessions of the Peace or made by any other Commissioners if they see good cause for it Mich. 22. Car. B. r. For this Court is the superintendent Court over all other Courts and is to regulate their proceedings where they be irregular and illegal If a Cause be put in the paper of Causes that it may be spoken unto in matter of Law by the Order of the Court and the Attorney in the Cause doth not attend the Cause at the day the Cause is to be put out of the paper and not to be put in again that Term. Mich. 22. Car. B. r. Except very good cause be shewed to the contrary This Court doth not take notice of Orders made in Chancery Trin. 23. Car. B. r. Nor in any other Court as to be bound by them but will proceed according to the Rules and Orders of this Court By the Orders of this Court the three last dayes of the Term the Judges have no paper of Causes either of Records or Conciliums delivered unto them for those three dayes are to hear motions Trin. 23. Car. B. r. That is the three last dayes of Hillary Term and Trinity Term which are Issue Terms for the two last dayes of Michaelmas Term and of Easter Term only are for motions Tuesdayes Thursdayes and Saturdayes are the proper dayes by the Orders of this Court to hear matters of Law Mich. 1649. B. S. But chiefly Saturday Outlawry The Court will not reverse an Outlawry although both the parties consent to it viz. the party outlawed and the party at whose sute he is outlawed except there be errour assigned in the Outlawry Mich. 22. Car. B. r. For matters of Record are not to be destroyed without sufficient cause and the Outlawry also doth concern the King as well as the Parties An Outlawry which is grounded upon an Endictment grounded upon the Statute against forcible entries preferred against divers persons may be reversed as to some of the parties endicted and yet may stand good as to others that are outlawed upon the same endictment Hill 22. Car. B. r. For the Outlawries against them are several and not entire and the proceedings to the Outlawry may be good as to the Outlawing of some of them and the proceedings to the Outlawry as to others may not be good An Outlawry that doth not express that the party outlawed was proclaimed as he ought to be is not good but may be reversed Trin. 23. Car. B. r. If the Defendant do not appear upon the quinto exactus made by the Sheriff of the County at his County-Court in the County where the Defendant doth dwell then he is outlawed by the Coroner Pasc 1650 22. Maij. B. S. For the Coroner is the chief Officer in criminal matters in the County Office and Officer The chief Cryer of this Court hath his Office by Patent from the King and this Office may be granted in resersion Pasc 23. Car. B. r. For the Court is the Kings own proper Court where himself used to sit in person and it is for his honour to have such Officers by Patent who are upon the matter to attend his own Person and not to leave them to be disposed of by others and it may be granted in reversion because it is but a ministerial place The Office of Assurance cannot assure the life of one that hath an Office for his life as it may do the life of one that is at Sea or beyond Seas and imployed in Merchants affairs Mich. 1649. B. S. For they have no power to assure the life of any but in case of Merchants affairs by the Statute which gave them their power which is the Statute of 43. Eliz. Oyer of a Deed c. If one be sued upon an Obligation he may pray Oyer of the Obligation and before he hath Oyer of it he is not bound to plead to the Plaintiffs Declaration yet he may plead without Oyer of it if he please But if he do plead without Oyer of it he cannot after his pleading wave his plea and demand Oyer of it 18. April 1650. B. r. To demand Oyer of the Obligation is not only for the Defendants Attorney to desire the Plaintiffs Attorney to reads the Obligation unto him as the word Oyer seems only to import or to have a sight of it but that he may have a Copy of it that his Clyent may consider by it what to plead to the Action Plaint THe Plaint is the Cause which the Plaintiff doth express in the Writ for which he doth complain to the King and for
course of the Court without moving the Court and if the Court be informed that they have made such a Rule they will vacate it Mich. 22. Car. B. r. For the Court is not to be troubled with needless motions and to do impertinent and useless things The Attorneys are bound to observe the Rules of the Court for if they should not other Attorneys would not know what to do in their Clyents Causes nor the Judges how to judg of the legality or illegality of the proceedings in Causes Mich. 22. Car. B. r. For to proceed in any thing without a Rule is to walk in the dark and tends to bring things to confusion If the Court do make a Rule which was grounded upon an Affidavit he that will move the Court against this Rule must bring in the Affidavit into Court upon which the Rule was made Mich. 22. Car. B. r. That the Affidavit may be read in Court to put the Court in minde for what reasons they made the Rule and whether there be stronger reasons to vacate it then there was for the making it or not The Plaintiff and Defendant are both bound at their perill to take notice of the Rules made in Court touching the Cause depending between them Hill 22. Car. B. r. Except part of the Rule be that one party shall give notice to the other of the Rule made against him The Court ought not to give a Rule to any prisoner in the Mareschallsea prison to go at large except such a prisoner have suits in Law of his own depending at the time of the Rule made Pasc 23. Car. B. r. If there be divers Rules of Court made in a Cause and one of the parties intends to move the Court upon a Rule formerly made he ought to move upon the last Rule made in the Cause Pasc 23. Car. B. r. For else the Court cannot understand how far the Cause hath been proceeded in The Court will make such a Rule by the consent of both the parties which without their consent they would not have made Pasc 23. Car. B. r. For Consensus partium tollit errorem The Court will not make a Rule for a prisoner that is not imprisoned in the Mareschalsea Pasc 23. Car. For that only is the prison which properly belongs to this Court and of which this Court hath jurisdiction over Any prisoner in the Mareschall may have a Rule of Court every day to go at large if such prisoner hath business in Law of his own to follow but such Rules do only extend to give him leave to go and retorne from his Councell and nor for him to go elsewhere at his pleasure Pasc 23. Car. B. r. Rules of Court ought to be interpreted according to rule and order and not incertainly Mich. 23. Car. B. r. For were it otherwise they would become snares and not Rules One is not bound to take notice of a particular Rule of Court except he have particular notice given him of the Rule Pasc 24. Car. B. r. Q Tamen For it seems every one should be conusant how the Court proceeds from time to time in his cause depending there The Preignotaryes of the Common Pleas will not make a Certificate to this Court of their proceedings there without a Rule of this Court to enjoyn them to do it Trin. 24. Car. B. r. But then they are to do it for the better informing of this Court and that the course of Justice may not be interrupted or delayed A Rule made in a Judges Chamber must be entred in the Office or else it is of no force to ground a motion upon Pasc 1650. B. S. 10. Maii. If a prisoner have a day Rule to permit him to go abroad yet he ought not by vertue thereof to go into the Countrey except it be in case where he hath business in Law there Mich. 1650. B. S. 12. Nov. Rejoynder If the Defendant do in his Rejoynder depart from his Plea pleaded in barr this Rejoynder is not good Mich. 22. Car. B. r. For this is to say and unsay which the Law doth not allow for Pleas must be plain and certain One ought not to Rejoyn upon such words which are not contained in the Declaration or Plea Mich. 23. Car. For that is for the party to frame a discourse of his own and not to answer the Plaintiffs Plea Remainder A contingent Remainder may be destroyed by destroying the particular estate upon which it depends Mich. 22. Car. B. r. For take away the foundation that supports the building and the building must needs fall A Remainder is a residue of a thing going before and yet in some case there may be a Remainder without a particular estate in esse to support it as it is in the Case of a Use in Remainder Hill 22. Car. B. r. But this is not by the Common Law but by the Statute Residuum est ultima pars diversorum particularium Trin. 23. Car. B. r. Revocation A Revocation of Letters of Administration may be without a seal Mich. 22. Car. B. r. For it is but to signifie the pleasure of the ordinary touching the administration of the goods of the intestate but the Letters of Administration must be under seal because thereby the administrator derives his authority which ought to be fortified as well as may be If an Attorney appear for his Clyent and accept of a Declaration the Clyent cannot revoke his warrant of Attorney with an intent to stay the plaintiffs proceedings Mich. 24. Car. B. r. But the Court will force the Defendant to plead and if he do not plead will order that judgment be entred against him for not pleading Ryot If divers persons do assemble together in a peaceable manner and after they are so assembled do act some Ryotous act this is a Ryotous assembling of them although they did not assemble at the first in a ryotous manner but peaceably Hill 24. Car. B. r. For the ryotous act shall have relation to their assembling together so far as to construe it to be with a ryotous intent although it did not appear soâ— at the first Two persons alone cannot make a Ryot but there must be three persons together at the least to make a Ryot 22. Car. B. r. But two persons may take a conspiracy Recognisance A Recognisance entred into in the Common Pleas is entred specially but a Recognisance entred into in this Court is entred generally Pasc 23. Car. B. r. Rolle The Plea Rolle is of more credit and esteem in the Court then the Essoign Roll for the Plea Roll is the Roll of the Court Pasc 23. Car. B. r. If a Writ of Error be brought to reverse a Judgment it is not necessary to mark the Roll yet if it be not marked that thereby the Attorney on the other side may take notice of the bringing of the Writ of Error nor the Attorney on the other side hath notice given him of the bringing of the Writ