are only put in agrravation of dammages 7 H. 6. f. 34. and so prayes judgement for the Plaintiff Green of Councell with the Defendant prayed the Writ might be abated Because 1. here is not any thing laid that the Defendant hath positively affirmed the Plaintiff to be a Bankrupt 2ly There are general words in the former Action namely alia enormia which words do comprehend the matter for which this Action is now brought and he denyed the differences taken by the Councell on the other side And it doth here appear to the Court that the former Action of Trespasse was brought for the same things and damages were therein given for them and it is unreasonable to punish one twice for one and the same offence and the averment is good and doth shew that both Actions are for one and the same cause and he hath recovered damages already for all the wrong he sustained and here is no conversion alleged in the Case nor is it vi et armis and the Law hates double vexation 2. H. 6. f. 54. Brook brev 397 3 H. 7. 4. Brook brev 77. and damages might well enough be recovered in the first Action for all the damages sustained 19 H. 6. f. 44. And if this Action now brought had been brought for calling the Plaintiff Bankrupt the Action would have lien but not as it is here brought and one entire Action shall never be divided to put the party to a double vexation as it is in our case 41 Ass pl. 16. Brook brev 309. â— rep Hudsons case and in the first Action the words alia enormia were purposely put in that all matters touching that Trespass might be brought in question to encrease the damages 9 E 4. Brook Tresp f. 1â—9 and so all the damages were recovered in the former Action And he agreed Laicons case put by Shafto that the Plaintiff might recover damages as well for the value of the Sheep as for the chasing of them and prayes the Writ may be abated Roll chief Iustice said it is hard to maintain Laicons case for cepit er abduxit intends that the owner hath not the Sheep again otherwise it would be if the Action had been for the driving of them only And Mr. Shafto hath taken a good ground viz. that the Actions are for severall things and the Declaration is in part but an inducement to increase the scandall and to prove it and the words alia enormia shall not be intended of collateral matter but of matter incident to the Act done And one and the same thing may give several causes of Action and one Action is not to be confounded with another Action Ierman Iustice said Laicons Case was not like this Case for the question here is whether the Plaintiff can recover damages in this second Action which he hath by intendment recovered in the former Action and he inclined that it may be so here and that there is a recovering of the same damages in divers manners for the same thing Nicholas Iustice said he may bring severall Actions although he might have joyned them both in one Ask Iustice said That one Act may be divided into divers Actions and so it is here and well enough Roll chief Iustice said the Plaintiff in this Action cannot recover damages for his Goods so that this Action is brought for another matter Therefore plead in chief if cause be not shewed to the contrary for the Action doth well lye Meers against French Hll. 1649. Banc. Reg. IN an ejectione firmae Arrest of judgement in an ejectione fiâ—â—ae and a verdict for the Plaintiff The Defendant moved in arrest of Iudgement that there is no certainty in the Declaration neither of the place nor of the quantity nor of the quality of the Land whence the Plaintiff was ejected for it is eâ—dnobus Acris fundi Anglice a hopground which is not warranted by the Latin and so it is incertain and it is also dimisit unum croftum and a peice of Land and the quantity is not expressed for it is per estimationem sive plus sive minus medietatem sive unam partem is also incertain Twisden answered it was certain enough because it is expressed by a certain name Declaration Grant But Roll chief Iustice said it is good in grants but not in a Declaration for there is required more certainty and the Anglice here doth not help it for the Anglice is not to interpret a Latin name by which it is called And the sive plus sive minus is also ill but if it had been so many Acres per estimationem it had been good Therefore advise better of it Antea Vaux and Vaux against Draper Hill 1649. Banc. sup Entred Trin. 1649. rot 1104. VAux and Vaux brought an Action upon the Case against Draper Arrest of Iudgement in an action upon the case upon a promise upon a promise and declared that the Defendant in consideration of ten pounds paid by the Plaintifs unto the Defendant did assume and promise unto the Plaintifs to procure certain Cattel of the Plaintifs taken from them by a third person to be redelivered unto them by such a time and for not performing this promise they brought their action Vpon Non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintifs after this case had béen twice spoken unto The Defendant moved in arrest of Iudgment that thâ—â— Action was not well brought joyntly by the Plaintifs but that they ought to have brought two several Actions Joynt action in regard that the promise upon which the Action was founded was not an entire promise but was a several promise made to each of the Plaintifs The Councel on the other side prayed for Iudgement and said the promise was intire made to both and not several and so the Iury have found it which shall be intended to be true and if it should not be so it would be disadvantagious for the Defendant Hales said on the other side that the assumpsit is several and the acts to be done by the Defendant to the Plaintifs are several although the assumpsit sounds as a joynt assumpsit Roll chief Iustice said That the Consideration given is entire and cannot be divided and there is no inconvenience in joyning in the Action in this case but if one had brought the Action alone it might have been questionable Nicholas and Ask Iustices of the same opinion But Jerman Iustice differed and said that they are several promises viz. to deliver such Cattel severally to each of them as did belong properly to them and so there must be two several Actions But Iudgement was given for the Plaintif except better matter shewed Antea Spry against Mill. Hill 1649. Banc. sup Pasch 1649. rot 208. IN a Writ of Error brought to reverse a Iudgement given in a Trover and Conversion at Launceston in Cornwal upon a nihil dicit Error to reverse a
case the Action was not brought till after the party tryed But it is objected that the Trespasse here is brought for the same fact for which the party was tryed and therefore it is unreasonable that he should be doubly punished for it To this I answer that it was at the parties election at the beginning either to endict him or to bring his Action of Trespasse Hudsons case 4. rep 43. And here the party hath made no election for the party was endicted at the sute of the Common Wealth and not at the prosecution of the party and so he hath made no election untill now And if the Action might not be brought it might prove very mischievous for the party might get himself indicted and so cousen him that is robbed of this mony Dyer 50. â— rep 13. And the highness of the nature of the endictment doth not drown the Action of Trespasse although that treason doth drown Felony R. 3. 6 H 7. 5. And although the monies here stollen be for feited to the State by the conviction of the Felony yet an Action of Trespass lyes against the Felon to cause him to render damages pro tanto although he cannot recover the mony in specie And the special verdict doth not find that any evidence was given for the Plaintiff upon the endictment but only for the State And for authority he cited Markham and Cobs case Trin. 2 Car. Entred 1 Car. rot 112. Roll chief Iustice said That Iustice Doderidg and Iustice Whitlock held that the Trespass lyes Trespasse But Iustice Iones held the contrary because if the party robbed might have his election either to endict the Felon or to bring his Action of Trespass many Felonies would be smothered and this would prove very dangerous and though the party robbed had endicted the Felon he might have had his goods or he might have brought an appeal against him and so there is no inconvenience to him 4 Iac. In Higgins case it was adjudged where an Action of Trespass was brought by the Husband for beating his wife by reason whereof she dyed that the Action did not lye because it was Felony Ierman Iustice differed from Roll chief Iustice and said that the inconvenience on the other side would be greater than is alleged if the Felon shall so take advantage of his one wrong and in 2 Car. it was held that the Action doth lye Roll chief Iustice said if the Felon have not wasted the goods when he is hanged the party shall have restitution but if he have wasted them Restitution and hath other goods he shall have restitution in value But let Wild argue it again the next Term. Accordingly it was again spoken too by Wild who argued that the Action of Trespass did not lye first because the party did not make fresh sute after the Felon according to the Statute 21 H. 8. which was made to encourage the prosecutor but the party hath not prosecuted here and it is all one to recover damages for the goods and to recover the goods themselves so that I conceive that is no difference And the great inconvenience which might come to the Common-Wealth if the Action should lye doth countervail the damage that may accrew to the party if the Action lye not And it matters not that it is said the Trespass is a distinct offence from the Felony for it is drowned in the Felony and therefore the party can have no satisfaction for it Mich. 21 Iac. Ayers and Higgins case C. â— 31 H 6. Bâ— 15. trespasse 415. 4. Iac. Higgins and Butchers case B. R. Roll chief Iustice This is after a conviction and so here is no fear that the Felon shall not be tryed Bat if it were before conviction the Action would not lye for the danger the Felon might not be tryed And there is no inconvenience if the Action do lye and since he could not have had his remedy before he shall not now lose it and now there is no danger of compounding for the wrong the rest of the Iudges agreed with Roll and so Iudgement was given for the Plaintiff Ellis and Pipin Mich. 1652. Banc. sup THe Court was moved that an outlawry might be discharged Motion to discharge â—n outlawâ—y because it is now pardoned by the Act of oblivion for notwithstanding it were not pardoned if it were an outlawry after Iudgment except the monyes due for which the party is outlawed be payed to the party as the book of 6 H. 7. f. 21. is yet outlawryes before Iudgment are pardoned and besides the parties here did submit to an arbitrement touching the matters in difference between them and an award is made But the Court answered that the outlawry cannot be discharged untill the party have brought his scire facias upon the Act Scire fâ—cias Interest and it was also said that the party at whose sute another is outlawed hath an interest by the outlawry as well as the State Prior and Hale Mich. 1652. Banc. sup A Letter of Attorney for one to appear to an Action is good enough by paroll to support a Iudgement given thereupon A letter of Attorney by paâ—oll good to some intent By Pinsent protonotarie of the Common Pleas. Nota. Fowke and Boyle Mich. 1652. Banc. sup FOâ—ke brought an Action upon the case against Boyle Demurrer to a Declaration in an Action on the case for selling of false bills of publique faith unto him to the value of 800 l. the Defendant demurred to the Declaration and took these exceptions to it 1. That the ordinance of Parliament upon which these bills of publique faith were grounded was misrecited for it is said to be made by both houses whereas it ought to be by the Lords and Commons 2ly The Aldermen who were authorised by the ordinance to give these bills of publique faith are not named by their Christian names but only Alderman such a one naming the surname 3ly There is 70 l. expressed to be paid as is mentioned in the papers and it is not expressed at what time or place as it ought to have béen 16 E. 4. f. 3. and 28 H. 6. f. 3. 4ly Here is an assignment set forth to be made in due form of Law but doth not shew in what maner 10. Iac. Mich. Glass and Gowr in this Court Latch on the other side said that the mentioning of the ordinance and of the Aldermen was but inducement to the Action and there is no necessity to call the Aldermen by their Christian names but as they are called in the Ordinance nor is it necessary to shew how the assignment was made and these words are the words of the party nor is it needfull to shew how the monies were to be paid Roll chief Iustice The cause of the Action is the desceit in assigning the false bills and affirming them to be true Inducement and all the other matters are but matters of inducement and by way
it shall be intended he continued to be his Attorny if it appears as it doth that he prosecuted for him Therefore shew cause Friday next why the judgement should not be affirmed Postea Kemp and Gord. Trin. 1654. Banc. sup Hill 1653. rot 840. AN Action upon the Case was brought by the Maior and Commonalty of the Town of Lyscard in Cornwall against Gord for not grinding at their common Mill. The Defendant demurs to the Declaration Demurrer to a Declaration in an action upon the Case for not grinding at a Mill. And Wadham Windham for the Defendant urged that the Custom is not well alleged upon which the Action was grounded For first it is not shewed that the House where the Defendant inhabiteth and by reason whereof it is supposed he ought to grind at the Mill is held of the Maior and Commonalty 2ly It is not shewed that the Maior and Commonalty are bound to repair the Mill and do constantly keep Grinders and Loaders And for the first this Custome ought to be affixed by reason of the tenure of the House or in respect of the Corn growing upon the ground used with the House and it is not proper to say a man is bound to grind by reason of his House 8 Rep. Farmers case f. 125. Hob. Harding and Greens case 19 Ed. 2. Fitzh Ass â—â—9 For the second this grinding at the Mill is a personal service and if the Maior and Commonalty be not bound to repair the Mill and to find Grinders and Loaders then there is not quid pro quo and the Custom will be unreasonable and a meer oppression 22 Ass Pl. 58. Latch on the other side said here is a good Custom alleged and it is not necessary to shew any tenure in this Action being but an Action upon the Case and not a Secta ad molendinum and so is it agreed in Harding and Greens Case And in 9 Iac. Hill rot 691. an Action was brought for this very Cause and the Custom was then allowed to be good Roll chief Iustice I believe this is a good Custom and the Corporation is bound to repair the Mill Custom and there can be no prejudice for the party to grind here and the Custom hath been already tryed and found good Therefore let the Plaintiff have his Iudgement nisi c. Iones and Graves Trin. 1654. Banc. sup IN the Case of one Iones and Graves It was said by Roll chief Iustice Where a Writ is abated where it is abateable That if a Writ of Covenant be brought against three and one of them die the Writ is abated only to him but is not abated to the rest but only abateable but Latch fortment that it is abated to all Tompkins and Clark Trin. 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Court at Newcastle upon Tyne Error to reverse a judgement in an action for words in an Action upon the Case for these words He meaning the Plaintif is a base beggarly Rascal and hath cozened the Parliament a hundred times and deserves to ride on the wooden horse standing on the Sand hill The Exceptions were that the words are not actionable for the Plaintif is at no loss or damage by speaking of them nor is thereby endangered of his life or to be punished corporally 2ly The words are not said to be spoken of the Plaintif nor to the Plaintif 3ly The Venire is not well issued Roll chief Iustice Reversetur nisi c. Stavley and Ulithorp Trin. 1654. Banc. sup LAtch moved again for judgement in this case formerly spoken to For judgement in an action on the Statute of 2 Ed. 6. concerning tithes notwithstanding the exception insisted upon by Shaftoe after the Court had delivered some opinion viz. that it was not expressed that the Parliament was held by prorogation because it is not necessary it should be so expressed 2ly The Action is here brought upon the second branch of the Statute which is that all persons shall set forth their tithes and the word subject is only mentioned in the first clause Maynard on the same side said that this mis-recital if it be a mis-recital affirms the Statute and it is not a false recital and therefore it doth not hurt Roll chief Iustice It is not good to make such recitals of Statutes in a Declaration Recitals nor would I have any recital made hereafter more than is necessary for the gist of the Action Shaftoe insisted upon it That the mis-recital here is a material Exception for the recital is not true for it is not all one to say the Subject of the King and to say the Subject of the then King for the former words goe to the pollitick capacity of the King as King and the latter words go to the natural capacity of his particular person Roll chief Iustice But what say you to that which is said on the other side That the Action is brought upon the second clause of the Statute which is that all persons shall set forth their tithes and not upon the first Clause which speaks of all Subjects of the King And the recital here is not material to the Action It is true here is a mis-recital and if the Action were brought upon the first Clause of the Statute it would not be good but it is not so here Therefore let the Plaintif have his Iudgement nisi Antea Trin. 1654. Banc. sup THe Court was moved for an Attachment against the Sherif of Staffordshire For an Attachment for making a frivolous return of a Habeas Corpus viz. That the Committee for poor prisoners had ordered he should not bring the body till they had consulted with the Lord chief Iustice Roll chief Iustice Take an Alias habeas Corpus with a pain of 80 l. Roby and Twelves Trin. 1654. Banc. sup Trin. 1652. rot 502. IN a special Verdict in an Ejectione firmae it was found Special verdict in an Ejectione firmae that there was a custom within the Manor of Castle Dunnington that any Copyholder of that Manor may make a writing in the nature of a Letter of Attorney to two Copyholders of the same Manor to surrender his Copyhold after his death The question was whether this was a good custom or not Alleyn argued for the custom that it was a good custom because such customs are not to be governed by the rules of the Common Law but by the rules of natural reason and are considerable in themselves and such customs may restrain the Common Law and the Common Law doth tollerate them And this custom that gives power to make this surrender after the Copyholders death is not unreasonable for the power given is not countermanded by his death no more than an Attorney is restrained by his masters death to act in the cause And in Butler and Baâ—ers case by the delivery of a deed after the death of the party the
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in Norwitch and the Error Assigned was Error to reverse a Iudgment in Norwitch that there did but five of the Iury empanelled appear at the tryal and yet a Verdict was given and Iudgement thereupon The Court said that a Corporation cannot grant a tales neither if they could doth it here appear that there was a tales granted and therefore reversed the Iudgement Sir VVilliam Bronker Pasc 23 Car. Banc. Reg. SIr William Bronker was brought before a Iustice of Peace upon an information made Habeas corpus for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice the Iustice requires him to find sureties for his good behaviour and upon his refusal commits him to Prison Sir William Bronker brings his habeas corpus in this Court and upon the retorn this matter appear'd the Prisoner prayes by his councell to be delivered because there appeared no matter sufficient upon the retorn why he should be committed but because the Gâ—oler desired time to amend the retorn the Court granted it and would not deliver the Prisoner but took vail for his appearance viz. the Earl of Dover Good behaviour and Earl of Chesterfield And the Court then said that a Iustice of Peace cannot bind one to the good behaviour upon a general information or commit him to Prison for refusing to find suretyes for his good behaviour upon such information Imprisonment VVroath and Elseye Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1224. AN Action of Debt was brought against Elseye an under Sheriff by Wroath the high Sheriff upon a bond given him to save him harmlesse Demurer to a plea in Debt upon an obligation c. the Defendant pleads that he hath saved him harmlesse to this the Plaintiff demurs and held a good demurrer for he ought to have pleaded non damnificatus and not generally that he hath saved him harmlesse for that he may do in many things and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse The rule was to shew cause why Iudgment should not be given for the Plaintiff VVhite Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action on the Case brought by an Atturney for these words spoken of him Error to revâ—rse a Iudgment in an Action on the Case for words Thomas White is a perjured Knave and a suborned Knave A Writ of Error was brought and divers exceptions taken but the principal were two 1. That the words aâ—â— not well laid for they are adjective words and so not positive enough to ground an Action 2. The words are not Actionable because it is not declared that the party of whom they were spoken was of any Trade or had any office But Bacon Iustice over-ruled all the exceptions and ordered cause to be shewn next day why the Iudgement should not be affirmed The Case of one Nicholas and Webb was afterward cited Case where Iudgement was given in the Common pleas for calling an Atturney Knave which Iudgement was said to be afterwards affirmed in the Kings bench 12 Car. Trin. rot 102. Saunderson and Martin Pasc 23 Car. Banc. Reg. Trin. 22 Car. rot 867. A Iudgement was given in an Action of Debt upon an obligation Error to reverse a Iudgment in Debt to perform such a promise made by the Obligor to the Obligee and a Writ of Error was brought to reverse this Iudgement The Error assigned was that the breach of the promise was not well assigned for it did not appear when this breach of promise was Bacon Iustice The breach of promise is the sole cause of the Action and it appears not to the Court when that was and for this he reversed the Iudgement Paine and Skeltrom Hill 23 Car. rot 740. AN Action of Debt was brought upon an obligation Demurrer a Plea in Debt upon an Obligation the condition was that Skeltrom the Defendant with his Wife should appear at the Marshals Court and for not appearing according to the condition was the Action brought Skeltrom appears and pleads that at the time of the obligation he was solus et innuptus To this Plea the Plaintiff demurrs Rolle Iustice said this Plea was not the same with ne unques loyalment accouple for one extended to a feme de facto and the other to a feme de jure The Court then advised of the Plea but Trin 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff Stoughton and Day Pasc 23 Car. Banc. Reg. SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs Demurrer upon a Declaration in Debt upon an Obligation upon an obligation with a condition to save the under-sheriff harmlesse in executing of processes and other things contained in the condition and Assignes the breach of the condition to be that the Bailiff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands To this declaration the Defendant demurs and shews for cause 1. That the warrant to him directed by the undersheriff was made out of the County where he was undersheriff and so could not be said his warrant as under-sheriff of that County 2. It is not alleged that the mannour of Addinson where he was by the warrant to levy the issues is within the Hundred where the Bailiff hath Iurisdiction Warrant And this the Court held to be a good exception and said that the breach Assigned is not shewed to be within the Condition of the Obligation because the Baily cannot execute a precept out of the Hundred where he is Bailiff and Thereupon the rule was that the Plaintiff Nil capiat per billam if cause were not shewn Tuesday following Cook and Fincham Pasc 23 Car. Banc. Reg. A Iudgement was given for Cook For vacating a Writ of Execution upon an information upon a Statute exhibited by him on the behalf of the King and himself where the King was to have ten pounds of the penalty recovered Cook takes out an Execution upon this Iudgement to levy the whole sum of money recovered to himself as appeared to the Secondary upon examination of the matter referred to him Upon this the Court held the writ of Execution to be ill Execution because it was entire for the whole sum recovered to the party whereas 10 l. was due to the King and ordered a new Writ of Execution and to stay the money in Court till further advice of the matter taken Clark and Pew Pasc 23 Car. Banc Reg. AN Action of Trover and Conversion was brought by Clark Arrest of Iudgement in an Action upon the Case against Pew and his wife and the Declaration was that
thereof the Defendant brings a writ of Error the question was whether the writ of Error were well brought in regard that the course of the Common pleas is not to make up the Iudgment untill the writ of enquiry be retorned Roll Iustice said that a writ of Error may be brought before the writ of enquiry be retorned in an ejectione firmae for in that Action the Iudgement is compleat at the Common Law before it be retorned Iudgement Error for the Iudgement is but to gain possession and so is it in a writ of Dower but in an Action of Trespasse where damages only are to be recovered there the Iudgement is not perfect till the writ of enquiry is retorned nor can be made up before as in this case it may but in regard that here is no compleat Iudgement entred for there is no capias which ought to be in all Actions quare vi et armis that the King may have his fine which else he cannot have if the party do not procéed in his Writ of Enquiry Error Execution the Writ of Error is brought too soon and you may proceed to execution in the Common-pleas for the compleat Record is not here Therefore advise what to do in the Common-pleas for it is mischievous qua cunque via Norton against Trin. 24 Car. Banc. Reg. NOrton brought an Action of Assault and Battery against the Defendant Arrest of Iudgement in Assault and Battery Mis-sworn and had a verdict against him The Defendant moved in arrest of Iudgement that in the Venire facias one of the Iurors was retorned by the name of Edmund and it appears by the Postea that he was sworn by the name of Edward which cannot be intended to be the same person Roll Iâ—stice said Amendment if the Clerk of the Assises in returning of the Postea have mistaken the name it may be amended here in Court by his notes by which he made the Postea and therefore let him be examined here whether it be a mistake or no. Toby against Angel Trin. 24 Car. Banc Reg. THe Court was moved for a reference in this Cause to the Secondary because the sute was commenced upon two Counter-bonds For a reference which are both cancelled Roll Iustice answered then why should it be referred for you may plead non damnificatus if the truth of the matter be so but the party may peradventure be damnified notwithstanding the Bonds be cancelled and may have good cause of Action Langly against Wybord Trin. 24 Car. Banc. Reg. LAngly brought an Action of Debt upon an Obligation to stand to an Award against Wybord Demurrer to a Replication in Debt upon an Obligation to stand to an Award Award The Defendant pleads nullum Arbitrium The Plaintiff replies that the Arbitrators did make an Award and sets it forth in haec verba The Defendant demurs and shews for cause that the Award is not well set forth for he doth not shew that the Award was delivered up by the Arbitrators according to the submission Roll Iustice answered it was well enough though it be not A second cause was that it is not said touching what sutes the Award was made Roll Justice answered the Award is said to be de praemissis and that is good enough 3ly The Award is that all sutes shall cease Roll Iustice This is well enough 4ly The Arbitrators have exceeded their submission The rule was to bring the Roll into Court and till then the former rule to stand Afterwards the Award was judged good and the Plaintiff had his Iudgement Trin. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Inferiour Court Error to reverse a judgement in an Inferiour Court and the Error assigned was That the plaint was entred before such an one Maioâ— and the sute was continued before another Maior and it is not shewn that the first Maior was removed and that the other Maior was lawfully elected and sworn Roll Iustice said that the Continuances in Inferiour Courts ought to shew the manner of the Continuances Continuance and it ought not to be expressed generally And it is not said tunc majori Tryal which would have made it more incertain I doubt the Venire facias is discontinued and then there is no Tryal therefore it is good to advise Pragnell against Goff 24 Car. Banc. Reg. GOff brings an Action upon an Assumpsit against Pragnell Error upon a Iudgement in an Action upon an Assumpsit and hath a verdict and a Iudgement against him The Defendant brings a Writ of Error to reverse this Iudgement The Case was this Pragnell did assume and promise unto Goff that in consideration that Goff would mary the Daughter of Pragnell that he would be bound to give over his Shop unto him and not use his Trade in Basingstoke and would lend unto him fifty pound and for not performing this promise he had his Iudgement The Error assigned was that there is a breach â—aid of all the promise Assumpsit which consists of divers parts and one part of it is against Law namely the Promise to be bound not to use his Trade and yet dammages are given entirely for all which is not good Wild on Councel on the other side said that in 2 H. 5. urged is no Iudgement given and in our Case it is not that he shall be bound not to use his Trade generally but only in the Town of Basingstoke and he may use it any where else and therefore it is not against Law Roll Iustice If the words be general that he shall not use his Trade in such a place without any consideration this is ill but it is otherwise if there be a consideration for a man may sell his Liberty Privilege for a Consideration and it shall bind him The rule was to shew cause Saturday next why Iudgement should not be affirmed This was afterwards moved objected Dammages that part of the Assumpsit was to turn over the Defendants Trade and dammages given for that which is impossible Roll Iustice said if dammages entire be given for some things with others wherof some are impossible the dammages shall be deemed to be given for those that are possible and void to the rest The Iudgement was affirmed Peeling against Ken. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 89. PEeling brought an Action of Debt upon an Obligation to stand to an Award against Ken. The Defendant pleads Nullum Arbitrium Demurrer to a Replication in Debt upon on obligation to stand to an award The Plaintiff replies and sets forth the Award in haee verba and assigns a breach The Defendant demurs to the Replication and the Plaintiff joyns in the Demurrer The causes assigned for the Demurer were 1. To the Award it self Award which is that whereas it appears that there was six pound and a shilling due by the Plaintiff
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
purpose to dispence with the want of Investiture if it were necessary and the reason of the making the new Patent of the Lord Barkeley was not for the want of the Clause of Investiture for the Investiture is a ceremony of the Heraulds and not essential to the Honour And although there be no certain place of denomination of the place of the Earldom yet is the Patent good for it may be out of England and yet she may be an English Countess notwithstanding Although I agree that forein honours may be granted by the Broad Seal of England but here be sufficient words to express her to be an English Countess the most proper that can be viz. the Patent Creations of such honours have been frequent she hath also a sufficient estate to support her dignity I confess that it is true that no person can be privileged from Arrest by grant but here the privilege ensues the Patent of her Counteship by Custom and Law as incident to it The King cannot grant a privilege to imprison but if he grant a Court the power to imprison follows necessarily upon it And the privilege which the Law gives to the person of a Countess is that which exempts her from Arrest as it appears in the Case of a Countess by Mariage and a Countess by Creation is more honourable than a Countess by Mariage and therefore ought to have as high privileges as the other and the Statute made concerning Countesses the wives of Earls and Barons do appertain to a Countess created for those Statutes were but an affirmance of the Common Law and did introduce no new Law This privilege is not taken away for it arose by Custom and by the Common Law and not from Foreiners as Latch conceives and so the reason of that cannot be as he urgeth but by the privilege of the person which indures as well when there is no Parliament as when there is and this privilege is during life and not like to a privilege granted by reason of employment For a Countess Dowager hath no more reason to be privileged in relation to military employment than a Countess by Creation and by the late Act no employment is taken away And for the Clergy they were privileged from Arrests not because of employment but by reason of the eminency of their persons There may be an Earl or a Baron by writ or by prescription and there it ought to be certified by writ but here the honour being by Creation the Patent may be pleaded to certifie it as well as if it were certified by writ and to plead it thus is the more proper way A Baron ought not to be stiled Dominus in a writ but by his Christian name and addition of Knight if he be one if he have no special name of Barony in his Creation Roll chief Iustice demanded if one be made a Baron and be not called to the Parliament by writ or comes thither by virtue of some clause in his Patent shall he be exempted from Arrest quasi diceret non And if one heretofore had had twenty Knights fees Privilege could he have come to the Parliament by reason of them And held that the privilege is not allowable for she never had reference to the Parliament or to do any other publique service Ierman Nicholas and Ask Justices agreed with Roll in all Roll said If the King grant a Town to be a Burrough the grant gives it not privilege to send a Burgess to the Parliament except there be special words in the Patent to warrant it but if he make a County it is otherwise by Statute Adjourned Hayward against VVilliams Hill 1650. Banc. sup Hill 1649. rot 824. THe Case was this Whether a Writ of Error well brought A Feme was sued as a Feme sole but by the surname of her Husband she being Covert Baron and Iudgement was given against her and the Baron brought a writ of Error The question was whether the writ of Error was well brought by the Baron It was then said That if a Feme Covert levy a fine as a Feme sole if her Baron die she shall not defeat it but the Baron may defeat it during her life 18 E. 4 40.7 Roll chief Iustice to the case at the Bar said how can the Baron bring a writ of Error here who is no party to the Record neither is chargeable by the judgement But let us see books for the case is considerable Postea Needler and Guest Hill 1650. Banc. sup Trin. 1649. rot Q. A Writ of Error was brought in the Chequer Chamber to reverse a judgement given in this Court Whether Execution may be notwithstanding a Writ of Error brought in the Chequer Chamber Execution The question was whether now since the late Act that a Writ of Error shall be no supersedeas of Execution this Court may grant execution Roll chief Iustice said it may for otherwise the Act is to no purpose Latch said the Record is not now in this Court and therefore there can be no Execution granted here Roll chief Iustice answered you have confessed by your pleading namely by your Demurrer that the Record is here so far as to grant Execution Therefore let there be Execution except cause be shewed to the contrary the day the next term But afterwards the Court said they would not grant it but said the party might take execution at his peril and Alleyn Hill 1650. Banc. sup A Certiorari was directed to the County Palatine of Chester to remove a cause into this Court. They make a special retorn Whether a Return good out of the County Palatine of Chester viz. that they have jurisdiction of the cause and that therefore they are not to certifie it Serjeant Glyn argued that this retorn was not good for this Court hath jurisdiction over all the Courts in England in writs mandatory 34 Ass 7.19 H. 6.12 And an Act of Plarliament doth not take away the power of this Court if it run not in the negative but in writs remedial it is not so general as it is in this case the cause may be well enough tryed here notwithstanding it be concerning a matter which ariseth in the County Palatine as the Statute 9 Ed. 3. C. â— is 2ly It appears that the Maior and Citizens of Chester are parties and so they will try their own cause and this appears by the Record and this they ought not to do 21 H. 7. f. 33. lib. Ass 332. 37 E. 3. f. 7.6 Iac. C. Banc. and Smith and Hancocks case 23 Car. Banc. Reg. Roll chief Iustice answered If the cause were come to tryal this were good cause to remove it but it is not so here and it appears not by the retorn that the matter of the sute did arise within the jurisdiction of the City what say you to that Iurisdiction for they have not shewn any cause why they should have jurisdiction
his promise to take notice of her coming Roll chief Iustice answered if all the Declaration be considered together here is a good consideration expressed for this is not like to the case of tender of money And the words obtulit se in maritagium conjungi shall be intended to the Defendant himself Consideration and then he must néeds have notice of her coming thither D ves of Counsel with the Defendant took this Exception that the Plaintif in setting forth her offer of mariage doth not say tunc et ibidem soe there is neither place nor time set forth Roll chief Iustice answered it is after a Verdict and you move this Exception too late Advantage and you have now lost the advantage of taking it If there be a sufficient notice it is well if not it is not good for there ought to be a notice for she may come to his house in private so that he cannot take notice of her coming thither Notice The question only is this whether notice be sufficiently and necessarily imployed in the words obtulit se in maritagium conjungi Curia advisare vult Postea King against Weeden Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif in an Action upon the Case upon an Assumpsit brought by an Administrator Arrest of Iudgement in an Action upon the Case 2 Exceptions were taken 1. That the Plaintif did not shew his Letters of Administration and 2ly That there is no good consideration set forth to ground the Assumpsit upon for it is that the Defendant did promise that if the Plaintif would forbear to take his course for the monies he would pay them which words are uncertain and he should have said his course in Law and not generally his course Roll chief Iustice to the 1 answered It is not necessary here to shew the Letters of Administration for they are but inducements to the Actio◠and not the ground of it And for the second exception the consideration is certainly enough set forth Consideration although the Latine be not very proper Therefore let the Plaintif have his judgement nisi c. Sawyer against Russel Pasc 1651. Banc. sup SAwyer brought an Action upon the case against Russel Arrest of Iudgement in an Action upon the Case for taking away certain Cattel and obtained a Verdict against the Defendant The Defendant moved in Arrest of Iudgement and took exception to the Plaintifs Declaration for the incertainty thereof The Plaintif declared of a Trover and Conversion de ducentis Averiis viz. bobus juvencis Anglice Steers Iuvencis Anglice Runts Iuvencis Anglice Heifers which is uncertain and so judgement cannot be given for it is uncertain for what number of each of the Steers Runts and Heifers judgement should be given Roll chief Iustice enclined that it is certain enough Averment and that the number may be averred and the Cattel are all of one kind yet The Court would advise afterward it was ruled Iudicium nisi Shedlock and La. Pere Pasc 1651. Banc. sup Hill 1650. rot 211. IN a Writ of Error brought to reverse a Iudgement given in an inferior Court The Error assigned was Error to reverse a judgment in an interior Court Iudgement Error Abatement that the Iudgement is quod recuperare debeat whereas it ought to be recuperare debet Roll chief Iustice answered That if it be so there is no Iudgement given and so no Writ of Error lies therefore let the writ be abated For the Writ of Error supposeth a Iudgement for the words of it are si judicium redditum sit and in 3. Iacobi in the Exchequer Chamber the very case was adjudged so Collins against Sillye Pasc 1651 Banc. sup Hill 1650. rot 302. THe Case was this Demurrer upon an entry upon Lessee for years Lessée for years by indenture covenants with the Lessor that he will not assign over the land let nor any part thereof without the consent of the Lessor The Lessor during the term enters into part of the land let the Lessee assigns over the remainder of his term in the rest of the land without the consent of the Lessor and the Lessor thereupon brings an Action of Covenant against the Lessee the question was whether it did lye in regard that the Lessor had entred into part of the land Covenant Roll chief Iustice held that the Covenant was collateral and therefore it is broken by the assignment notwithstanding the Lessors entry into part of the land And the rule was judicium nisi Custodes against Monger Pasc 1651. MOnger was endicted for forgeing a presentment to a Iury in a Court held before Commissioners of sewers Exceptions to the setting forth of a presentment against Monger for casting of 10 loads of soil into the Thames Exceptions were taken that it doth not appear by the endictment by what authority the Court was held where the presentment was found 2ly It is not averred that the presentment did present the casting in the soil to be any annoyance 3ly There doth not appear to be any process in the case against the party upon the presentment To the first it was answered by councell on the other side that it is not necessary to shew by what authority the Court was held for their Authority is by Act of Parliament and it is a publique Act to be taken notice of Roll the chief Iustice answered That it is a private Act made for the City of London and concerned the Lord Maior though part of it be publique Statute for part of an Act may be publique and another part of it private and of that part which is private we are not bound to take notice and it was here said that in criminal causes Errors in proceedings are not helped by a verdict Notice Roll took an exception that the endictment was only contra pacem publicam Ieofail Indictment whereas at that time when it was preferred it ought to have been contra pacem nuper domini Regis contra pacem publicam nunc Adjourned 23 Car in the Kings Bench. Pasc 1650. rot 414. Cremer Plantiff in a Replevin Burnet Avowant in a Replevin THe Plaintiff complains for the taking of his Cattell Whether a copyhold estate be extinct by the Kings leasing it for life to wit a Horse Colt and three Mares the 13 of Ianuary 21 Car. at Chingford in the County of Essex in a close there called Pipers down THe Defendant avows the taking of the Cattel in loco quo c. as Bailiff unto Thomas Boothbye as damage feasant in the Close aforesaid being the soil and the freehold of the said Thomas Boothby Vpon the pleading the case appeared to be as followeth KIng Henry the 8. being seised in Fée in the right of his Crown in the maner of Chingford Comitis in the County of Essex of which manour a certain tenement called Lormiers
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
to be within the Statute of 7 Ed. 6. If the Statute give liberty to Iustices of peace and Oyer and Terminer or Iustices of assise to enquire of this offence then an information cannot be preferred in a County where the offence was not done and the meaning of the Statute 21 Iac. is not to put the party without remedy and if he cannot sue by the Statute of 7 Ed. 6. in the County where the offence was committed then this Statute of 21 Iac. bars him not to prefer an information in another County Latch of Councel against the enformer said that by the Statute of 7 Ed. 6. an information lyes before Iustices of Peace or Assise or Gaol delivery Roll chief Iustice I deny that by the Statute of 7 Ed. 6. the information could not have béen brought in any other place but in the Courts at Westminster and therefore that it is not necessary to bring it in the County where the fact is done notwithstanding the Statute of 21 Iac. ◠it is reason it should be so because that no jurisdiction is given by the Stat. of 21. Iac to Iustices where they had no power before And the Court of Record expressed in the Stat. of 7 Ed. 6. shall be intended one of the Courts at Westminster and not a Court of Record else-where Therefore shew cause why the Iudgement shall not be affirmed Tench and Hubrison Mich. 1652. Banc. sup IN the Case of Tench and Hubrison upon a motion for a prohibition to the Court of Admiralty The Court of the Admiralty cannot proceed criminally It was held by the Court that the Court of Admiralty cannot proceed criminally against one that is in contempt to the Court. Yet the Court said they would here the Civilians if they would speak in it Saturday following Cydall and Spencer and others Mich. 1652. Banc. sup IN the Tryal between Cydall and Spencer and others Where one may have Election in an Ejectione firmae it was said by the Court. That if one do disseise me of part of a house and I am in possession of the rest of it It is at my election whether I will admit my self out of possession of the house or not Long and Hebb and others Mich. 1652. Banc. sup IN a Tryal between Long and Hebb and others To what time Letters of administration shall relate Relation Trespass Trover it was said by Roll chief Iustice that Letters of Administration do relate to the time of the death of the Intestate and not to the time of granting of them and therefore an Administrator may bring an Action of Trespass or a Trover and Conversion for goods of the Intestate taken by one before the Letters granted unto him otherwise there would be no remedy for this wrong done Mich. 1652 Banc. sup THe Court was moved to change the Venue in an Action brought for an escape But Roll chief Iustice said it ought not to to be changed Where the Venue may not be changed for an escape is not local but transitory for an escape in one place is an escape in all places Sidenham Mich. 1652. Banc. sup IN the Case of one Sidenham Roll chief Iustice said Where one may vary from his plea. It had been a question Whether if one plead payment at a day he shall be admitted afterwards to plead another plea. Watts and Lowth Mich. 1652. Banc. sup AN Action upon the Case was brought upon divers Assumpsits Arrest of Iudgement in an Action upon an Assumpsit and a Verdict given for the Plaintif It was moved in Arrest of judgement that the Iury had given more damages than were laid in the Declaration whereas it was but a mis-casting in the quae in toto attingunt Roll chief Iustice said That the mis-casting is nothing if the damages given by the Iury be not more than the Plaintif hath laid in his Declaration Verdict And therefore let him have his judgement Gough and Cann Mich. 1652. Banc. sp IN an Action brought for a Rescous Arrest of judgement in an Action for a Rescous and a Verdict found for the Plaintif these Exception were offered in Arrest of Iudgement 1. whereas he speaks of the next Court he doth not shew where that next Court was held 2. The time of the Arrest is not shewed upon which the Rescous is supposed to be made 3. It is not shewed that the party rescowed was in custody of the Serjeant from whom he was rescowed 4. It is not shewed before whom the Plaint was upon which the Arrest was made 5. The venire is ill awarded for it is to the Coroners where it ought to be to the other Sherif if one be a kin to the party and Latch offered this Exception that the Declaration sounds in Trespass which Action doth not here lie for the party Election Trespass Case But to that Roll chief Iustice answered that it is in the election of the party to have an action upon the Case or an Action of Trespass for an Action of the Case or an Action of Trespass lies at the election of the party against one for taking away his Wife And he demanded whether the two Sherifs of Bristow where the Rescous was brought were not one Sherif and whether the venire was not helped by the Statute And it does also appear that the party was in custody by vertue of the Process and it is now after a Verdict And he said that if one rescue the party who is arrested at my sute because that after the party is arrested I have an interest in the body of the party Rescous this Rescous is a Trespass to me for which I may well maintain an Action of Trespass And Ierman Iustice said Pledge that the body of the party arrested for debt is a pledge for the debt it self Iudgement was given for the Plaintif Liniston and Maurice Mich. 1652. Banc. sup THe Case was this Arrest of Iudgement in an Action of Trespass for not carrying away tithes An Action of Trespass was brought against a Parson for not carrying away his Tithes in due time The Defendant pleads that the Plaintiff gave him no notice to fetch away his Tithes the Plaintif replies that he did give him notice but doth not shew where he gave him notice and upon this Exception judgement was stayed Afterwards Baldwin of the Inner Temple moved for judgement and alleged that the not alleging the place was no Error Nicholas Iustice what say you to Durdens Case Roll chief Iustice There are many cases where the place is not material yet it must be alleged for the Venue Place If Debt be brought against an Executor and he plead fully administred if the Plaintiff reply that he hath assets he ought to allege the place where he hath assets And I conceive that there ought to be a place alleged here Repleader that a Iury who are nearest the place and so may have the best
the same side said that here is a fact done to eradicate the whole government of the Town for doing whereof the parties justly deserve to be disfranchised and their entring of orders into the Register-book is a corrupting of the Customs of the Town and tends to the subversion of the Corporation and he cited 28 H. S. Maleverers case in Dyer Alleyn on the same side Here is sufficient cause shewed in the retorn to turn the parties out of their offices unto which they pray to be restored if there should not appear sufficient matter to disfranchise them Roll who when this case was first moved was chief Iustice said here is one Groves that prays to be restored concerning whom the retorn shews no cause at all why he was removed No cause of disfranchisement but only that he was endicted of Felony which is not a sufficient cause for he may be endicted falsely and it doth not appear that any thing hath been as yet done upon the Endictment and yet they allege this for cause why they will not restore him and if you have no cause to remove him then he is unjustly removed and ought to be restored and this cause you have shewed such as it is was after that he was removed and so could be no cause of his removal But for the rest there is no question but that here is a high contempt and just cause to disfranchise the parties for here is more than an opinion as hath been urged for them for there is an Act of a high nature tending to evert all government in hindring the proceedings of Iustice and the profit and wellfare of the Town and a greater offence of this nature cannot be imagined and therefore for the matter there is cause to disfranchise them But the question is whether the retorn be good and as to that I conceive it not necessary to set forth the whole Oath or to aver the swearing of the Attorney But the retorn ought to have been that by their Custome they have used to remove persons for such offences Have used to remove and not to say they are removeable and of this I doubt and will advise At another day Latch of Councel for Yates urged that the retorn was not good for they have not shewn any Act done to remove any person for misdemeanors according to the custom as they have alleged it for the return says only that such parties have been removable and this is only a possibility of an act and it appears not how they are removable Possibility of an Act. either by their Custom or by their Charter and consequently here is no ground for their removal returned Pasch 33 Eliz. C. B. a potential Custom returned is not good Potential custome not good possit potuislet adjudged not good in Sir William Hattons case and 21 Iac. usus fuit held naught And as to the Objection that it is not necessary to return their power to remove because it is a thing incident unto their Corporation I answer they have returned a power but have not made it good by the return Mag Chart. 25. and to the Objection that a return needeth not to be so formal as a pleading and that therefore if their power do appear upon the whole return it is good enough I answer that they have failed in the very matter of their prescription and not in the form only and they must certifie a good cause of their removal that the Court may judge of it and as to that which is objected that their Charter is a very antient Charter and therefore cannot be pleaded I answer Charter pleaded and not given in evidence that they may give it in evidence and also a Charter made time out of mind may be pleaded as an old deed may although you cannot plead that it was made time out of mind Serjeant Twisden on the same side All customs ought to be alleged in facto 9 Car. Fletcher and Bagnals case Licitum fuit for a Londoner to use any trade by the custom of London adjudged to be ill pleaded and though it may be good in an evidence yet it is not good in a return Alleyn on the other side said that the return is good in the returning of the custom though it would have been ill in the pleading Pleading Retorn which is stricter than a return need to be and here is matter enough returned to remove the parties and the whole customs need not to be returned and the informality of the return shall not make it ill for this Court is to judge of the matter of fact returned and so is Giles Bags and Wagoners case and they have returned a custom to remove and by consequence some have been removed or else the return is false which is not to be presumed Windham Every custom is presumed by the Law to have a lawfull beginning and shall be intended many times to be by antient Charter namely for such things as are not to be claimed without a Charter but if they may be claimed without a Charter it shall be intended otherwise Antient Charter An antient Charter doth not lose its force by not being confirmed in Eyre as Latch hath said 24 H. 6. and there may be a prescription for things which have never been acted if it began by Charter 22 E. 4. f. 9. Green on the same side The very words of the retorn do enforce that persons have béen removed Glyn chief Iustice I have no books delivered me in this case And this Exception was moved the last Term and it is very doubtfull to me and my Lord Roll would not deliver his opinion I could wish the business might be composed for the peace of the Corporation To say that the lands have been demised and demisable the words shall be taken distributive But me seems here is no matter of fact returned for removing of any At another day the case was spoken to again and against the return it was excepted as formerly Prescription in fieri that the Town had not by the return intitled themselves to any power to remove the parties for here is a prescription only in fieri and not in facto returned viz. That such persons have been accustomed to be removable and it doth not say they have béen removed and these cases viz 20 E. 4. and Mich. 7 Car. Flower case and Mich. 9 Car. Fletcher and Bagshaws case and Skipwiths case 25 Eliz. C. B. were cited by Wild on Councel for Yates Windham on the other side as formerly distinguished betwixt a pleading and a return which needs not be so formal as a pleading but shall be taken good to a common intent and said that Wagoners case which was as this is was adjudged to be well upon good advice and the substance of the prescription is well set forth in the return and the formality is not to be much stood upon Substance or regarded Alleyn