not well pleaded for it is pleaded too generally and not in the several circumstances thereof as it ought to be The Court commanded the Record to be read and upon Dyer of it answered That 2 Churches united by the Statute are both of spiritual promotion And the Statute of 12 Eliz doth not repeal the Statute of 38 H. 8. But let the party shew cause why the Iudgement should not be reversed Repeal and let us see a book Burton against Low Pasc 1649. Banc. sup Mich. 1649. rot 27. AN Action of Debt was brought upon a Bond taken by a Sheriff Dâ—muâ—â—er to a plea in debt upon a Sheriffs Bond. for the Defendant to appear in Chancery upon an Attachment issued out thence against him The Defendant pleads the Statute of 23 H. 6. That the Sheriff ought not to take Bonds of any but in speciall cases and that this Bond is void because it is taken against the Statute To this plea the Plaintiff demurred The question was whether an Atatchment out of the Chancery be within the Statute of 23 H. 6. The Court ordered cause to be shewn why Iudgement should not be given for the Plaintif upon this Demurrer Postea Edwards against Fallowes Pasch 1649. Banc. sup EDwards brought an Action upon the Case against Fallowes for speaking of these words of him viz. Arrest of Iudgement in an Action for words Edwards hath stollen my Axe from my Wood Pen and for causing him to be bound over to the Quarter-Session It was moved in Arrest of Iudgement that the words were not Actionable But the Court held they were actionable and gave Iudgement for the Plaintif Nisi causa c. Viccarye against Barns Pasch 1649. Banc. sup rot 1724. VIccarye being a Mercer by his Trade Arrest of Iudgement for words brought an Action upon the Case against Barns for speaking these words of him viz. Thou art a Cuckold and a Cuckoldly Rascall and dost owe more than thou art worth and are not able to pay thy debts Vpon non culp pleaded and an issue joyned and a verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable for for the first part of the words they are clearly not actionable and for the latter words they do not imply any shifting fraud or falshood and so cannot imply him to be a Bankrupt for though he doe owe more than he is worth and is not able to pay his debts yet he may be an honest man and he may have credit and friends to support him in his trade Apes and More Pasch 15 Car. and Iones and Iacob â—4 Car. The Court answered here is no fraud or deceipt implyed which do make a Bankrupt within all the Statutes touching Bankrupts and if there be a special loss alleged the words will be actionable otherwise not Bankrupt But let Iudgement stay till the other side move and bring us a book for the words are worthy consideration Postea Barnestone against Gale Pasch 1649. Banc. sup AN Action of Trespass was brought for chasing of the Plaintifs Hogs Arrest of Iudgement in Trespass the Defendant by way of justification pleads a special plea viz. That he did hunt them with a Dog by the command of his Master because the Plaintif did put them into his Masters ground to eat the Acorns there The Plaintif replyed that he had Common there Vpon this an Issue was joyned and a Verdict found for the Plaintif Replication The Defendant moved in Arrest of Iudgement upon this exception that the Plaintif in his replication hath not answered the bar for he prescribes only for Common of Pasture and pannage is no pasture and so he hath no right to the Acorns But Roll chief Iustice said If they have cause to eat the Grass they may also eat the Acorns there for they may be on the grounds and therefore it is a good justification And therefore let the Plaintif have Iudgement except cause be shewn to the contrary Bolton against VVills Pasch 1649. Banc. sup AN Action upon the Case was brought upon an indebitatus Assumpsit for a hundred and ninety Weathers sold by the Plaintif unto the Defendant at 18 s. Arrest of Iudgement in an Action upon the Case upon an Assumpsit a shéep which in all amounts to 190 l. Vpon an Issue joyned and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the Declaration is not good but mistakes the promise for the Weathers promised to be paid for do not amount to the sum for which the Declaration is laid And also the issue is taken upon the immaterial part of the plea and the matter well pleaded is waived The Court answered That mistaking of a Iudgement is a mistake of the Clark and is not material Amendment but here the Declaration it self is mistaken and that is material for the Action is grounded upon the promise in Law upon the sale of the Shéep Declaration and not upon any new Contract and by the sale there wants 2 s. in every Sheep to make up the sum demanded therefore the Declaration is repugnant Nil capiat per billam nisi c. More against the Earl Rivers Pasch 1649 Banc. sup Mich. 1649. rot 588. VVIlson of Councel with More the Plaintif argued against the Plea of Péerage pleaded by the Earl Rivers as it is pleaded and took these Exceptions Argument against the plea of Peerage 1. It appears not here by the Retorn by what Warrant the Earl was committed and brought hither and so he hath no day in Court and so the Plea is not good 2ly It is not shewed by virtue of what Warrant he was taken 3ly The Plea is 1. In abatement of the writ 2ly In avoidance of the Act of the Iudge and the latter ought not to be questioned by Plea 3ly There is no Plea but bare words for he pleads the Common Law 4ly He pleads his Patent as Earl only by way of Argument 5ly He ought to shew the writ under the Seal testifying the matter 8 H. 6. f. 9. 6ly The investiture of the Earldom is the livery and seisin of the Earldom and he hath omitted the pleading the Ceremonies of the investing and so he doth not shew that he is an Earl By the Statute Law Capias viz. of E. 3. a Capias was given in debt and before that a Summons was the process The Councel on the other side said they had demurred to the Plea Summons and shewed the cause of their Demurrer but the Court reproved them because they had ruled the matter in Law should be argued at the Bar to enform their own Iudgements Adjournatur Postea Syms against VVilson Pasch 1649. Banc. sup Pasch 23 Car. rot 120. SYms brought an action upon the Case upon the Statute of Monopolies against Wilson Demurrer to a Plea in Bar in an Action upon the case The Defendant pleaded
the word pena be left out the Endictment is good enough without it and therefore passes ouster A second exception was that the Endictment doth not say that the Iustices before whom it was taken were justiciarii ad pacem tenendam in villa praedicta and then they might have no power to find the Endictment but this exception was also over-ruled by the Court A third exception was That the Endictment is too general for it only sayes that the prisoner practicavit diabolias artes and doth not expresse what To this Roll Justice answered that the employing of wicked spirits to any intent whatsoever is Felony within the Statute Felony and the intent why they were employed is well expressed in the Endictment and if an Endictment fail in one part it may be good in another and therefore the Endictment is good and the prisoner must plead Whereupon the prisoner pleaded not guilty Vpon this Walker moved the Court that this was an old Endictment and that the prisoner had been twice acquitted upon other Endictments of the same nature and that this was prosecuted for malice and prayed that the prisoner might be bailed which was granted And she was bailed by her Husband and by one Zachary Baggs a sufficient Citizen and Fishmonger of London and two others to appear at the next Assises to be held for the County of Suffolk Trin. 24 Car. Banc. Reg THe Court was moved to quash an Endictment exhibited upon the Statute of perjury at Kingston upon Thames for these exceptions To quash an Endictment upon the Statute of perjury 1. It is not expressed in what County Kingston is and 2ly the Endictment doth not expresse how the party is perjured for it shews not in what cause it was nor that it was in giving any evidence upon oath as a witnesse in any cause Vpon these exceptions the Endictment was quashed Nota Butler against Long. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 496. LOng brought an Action of Trespasse against Butler in the City of _____ and hath a verdict and a Iudgement Error to reverse a judgement given in an inferiour Court the Defendant brings a writ of Error to reverse this Iudgement and assigns for Error 1. That the Declaration doth not shew in what Parish within the City the Trespasse was done as he ought To this Roll Iustice answered That it shall not be intended that there are more Parishes within the City than one Intention except the contrary be shewed 2ly The Declaration est quod cum talis viz. the Defendant c. which is not an expresse averment Declaration Trespasse that the Defendant did the Trespasse but it is set forth only by way of circumstance that he did it which is not good for he ought to be charged directly with it Roll Iustice The setting forth the Trespasse by a Quod cum is not good tho gh in another Action it may be good Therefore let the Iudgement be reversed except cause shewn to the contrary Saturday next VValker and Alder Trin. 24 Car. Banc. Reg ALder had a Iudgement and an Execution against Walker Auditaquereld for one taken twice upon one execution and thereupon he was taken and in custody in the Kings Bench prison Alder the Plaintiff afterwards consented that the Defendant Walker should come to him out of prison to the Horshoe Tavern which was out of the Rule without a Keeper or rule of Court thinking to make some agreement with him The Defendant accordingly went thither but because no agreement could be made The Plaintiff takes the Defendant again upon the same Execution and layes him again in the Kings Bench Audita querela Discharge the Defendant thereupon brings his audita querela And adjudged by the Court to be well brought for the Execution was discharged by the Prisoners going at large and therefore he could not be again taken upon it Reader against Palmer Trin. 24 Car. Banc. Reg. REader brought an Action upon the Case against Palmer Arrest of Iudgement in action upon the case for altering the Declaratio and hath a verdict the Defendant moved in arrest of Iudgement that the Plaintiff altered his Declaration in the consideration of the promise and in the promise it self after he had pleaded so that thereby the same issue which is tryed is not that which was joyned Twisden of Councell with the Plaintiff said that the issue was not altered for the words altered are not material words Wild of Councell with the Defendant said the issue was altered by alteration of the words for the Action is brought upon a special promise and not upon a promise in Law as the altering of the words have made the promise to be and therefore it is a material alteration Roll Iustice said it is a material thing that is altered and it ought not to be amended An Actual promise and a consideration continuing Amendment cannot be taken to be at another time Hodg and Vavisors case 14 Iac. Barton and Shurlyes case Mich. 15 Car. And therefore give new rules to plead and so proceed according to the course to a new tryal VVolverly Strachy against Trin 24 Car. Banc. Reg. VVOlverly Strachy brought an Action upon the Case against the Defendant Demurrer upon a plea in an action for scandalous words Plea declared that whereas she was a woman of agood fame and honest reputation c. The Defendant spake these words of her viz. she is a common Whore and I will prove her one by reason whereof she lost her credit and reputation and her mariage The Defendant pleaded that she was not of an honest reputation at the time when he spake these words of her as is alleged in the Declaration The Plaintiff demurs generally to this plea. Iudgement was given for the Plaintiff except cause should be shewed Saturday next to the contrary Antea and the Lord Moone Trin. 24 Car. Banc. Reg. MY Lord Moone had a Sute commenced against him in this Court For a supersedeas for a Peer of the Realm Supersedeas Privilege and thereupon he moves by his Councel upon an affidavit that he was a Peer of the Realm and a Lord of the Parliament and therefore ought not to be sued and prayes for a supersedeas to stay the proceedings Roll Iustice Plead your privilege for upon an affidavit we will make no rule or else acquaint the other party that he is a Peer of the Realm and it is like he will forbear to proceed thereupon But you ought not to trouble the Court with such motions as these Cornish against Cowsye Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 1434. COrnish brought an Action of Debt against Cowsye an Executor Special verdict in Debt for rent against an Executor for arrerages of rent incurred part in the life of the Testator and part in the time of the Executor The Plaintiff declares upon a lease made by him to the Testator by
case for the Riot is found upon the view View Record and so there néeds no enquiry and the Record ought to be made up by the two Iustices that had the view and by the Sherif and it is not made by them as Iustices but as Iudges joyned with the Sherif by the Statute Iustices that find a Riot may either bring in the Record in Court propriis manibus of their own accord or may send it into Court as they have done here The prisoners committed upon the first Record read for there were two here read in Court were bailed but not discharged Discharge although the retorn was not good because the Court said it was not usual to discharge prisoners at the first reading of the retorn For the other prisoners The Court advised Bendir against Oyle Mich. 1649. Banc. sup For a Prohibition to the Court of Pollicy of assurance A Prohibition was prayed to the Court of the Commissioners of pollicy for assurance upon a surmise that they proceeded there in the tryal of the Assurance of a mans life which was said to be tryable at the Common law as it was before the Statute made that erected that Court Assurance as may appear by the preamble of the Statute Roll chief Iustice said that the Assurance of the life of a man is not within the Statute of Assurance as the Assurance of a mans life upon the buying of an office but this case is different for the man whose life is here assured is going to sea upon Merchants affairs and his life may be as well assured as the safe return of the ship he goes in But let Councel be heard on both sides Wednesday next but wee will stay nothing in the interim Postea Mich. 1649. Banc. super AN Information was exhibited against the Inhabitants of the Town of Burmingham for not repairing Burmingham-bridge To amend a Record after verdict two of the Defendants plead to issue and a verdict was found for them in paiis It was moved for the Defendants that Mr. Attorney General had mistaken the Christian name of one of the Defendants in his replication and prayed that the Record might be amended before Iudgement entred Amendment that the Iudgement may not be erronious by reason of this mistake The Court answered Bring a Copy of the Record to us to advise upon Issue but they said they did not see how it could be amended for that they conceived there was no issue joyned Hobbs against Blanchard Mich. 1649. Banc. sup Pasch 20 Car. rot 220. BLanchard brought an action of Trespas in the Court at Norwitch against Hobbs and had a verdict and a judgement Error to reverse a judgement in trespass The Defendant brought a writ of Error to reverse the judgement The error assigned was that the Iury had not found the issue joyned for the issue joyned is de injuria sua propria absque tali causa and the Iury have found not guilty generally Panel of Councel with the Defendant in the writ of Error said that the Iury have found the effect of the issue though they have not found the very words and therefore it is good enough and he cited Fabian Kingstons case 32 Eliz. and Wingrave Homes his case 3 Car. entred 2 Car. rot 632. Roll chief Iustice answered That the verdict found the issue argumentatively only and not directly and therefore it is not good Verdict Ierman Iustice was of the same opinion and the Iudgement was reversed except better cause shewn Carew against Bawd Mich. 1649. Banc. sup Trin. 24 Car. rot 1607. CArew brought an Action of trespas against Bawd for entring into his ground and taking away a certain parcel of Tynn Demurrer to a plea of privilege of Parl. in an action of trespass The Defendant pleaded that he was servant unto the Lord Moone who was a Lord of the Parliament and that he took the Tynn by his Command and claims his privilege as his servant not to be impleaded to this plea the Plaintif demurrs and for cause shews that the Defendant doth not shew that he was the Lord Moons menial servant Privilege and attending upon his person and it may be he was his Carter or Plowman and such servants are not privileged Roll chief Iustice said The privilege is not claimed here méerly as his servant but he justifies here as his servant in defence of his Masters title to the Tynn Waiver which he took by his command But let the Defendant plead in Chief and let the Plaintif waive the Demurrer Or else let the Plaintif enter his suggestion upon the roll that the House of Lords is now dissolved and so let them take issue and go to tryal Or else let the party plead what he will upon record and we will advise in the mean time Paroch de Hardingham versus Paroch de Brisley Mich. 1649. Banc. sup AN order of Sessions made for the setling of a poor woman in the parish of Hardingham was returned hither by a Certiorari granted to the said parish For quashing an Order of Sessions for the setling of a Vagrant and upon the return read and opening the matter by Councel the case was this An inhabitant dwelling within the parish of Brisley did hire a maid servant for a year and Covenanted to give her Forty shillings for her wages and entertained her into his service The maid servant some time after fell sick in his service her Master thereupon turns her out of his service without giving her any thing the maid for necessity in travelling from Brisley toward Hardingham where her friends lived and where she was born was forced to beg for relief whereupon she was sent as a Vagrant to Hardingham where she was born The Vill of Hardingham send her back to Brisley where she was entertained as a Covenant servant whereupon they of Brisley procure an order of Sessions to settle her at Hardingham The Question was Whether this were a good order or not for setling her at Hardingham according to the Statute Or whether she ought to be setled at Brisley where she was entertained as a Covenant servant and turned out of service and forced to begg by that means Roll chief Iustice said That here séems to be fraudulency in the Master to make his servant a Vagrant Vagrant that so he may be rid of her but if one begg meat and drink for necessity in passing betwéen one Town and another this is not begging to make one a beggar within the Statute And therefore the Court ordered that the party should be setled at Brisley Setlement where she was entertained for a Covenant servant and not at Hardingham where she was born if cause were not shewn to the contrary Harwood against Paty Mich. 1649. Banc. sup THe case betwéen Harwood and Patye was again spoken unto Argument in trespass whether Tithes be extendible by Wild of Councel
of the first Intestate and after moved the Court that he might have a scire sacias to revive the Iudgment obteined by the former Administrator But the Court answered that he could not have it but must begin a new Action for the debt against the party Hill 1650. Banc. sup ONe was endicted for speaking these words against a Maior of a City To quash an endictment viz. you are a forsworn man and have broken your oath Hales moved to quash the endictment because the words have no reference to the Maior in respect of his office Ierman Iustice answered that the speaking of the words is a breach of the good behaviour and thought it fit the Defendant should plead to the endictment to which the Court at first enclined But afterwards ruled the other party to shew cause on Monday following why it should not be quashed The Countesse Rivers case Hil. 1650. Banc. sup THe Countesse Rivers was arresten by a bill of Midlesex and prayes in Court by her Councell that the Writ may abate Arguments touching privilege of peerage not to be arrested and the Precept and pleads her patent whereby she was created a Countesse and so pleads that she ought not to be arrested Latch of Councell against the Countesse argued that her patent was not good because it wants the words of investiture which are materiall words in the making of an Earl or Countesse for although the Act of investiture may be omitted because she is a woman and she cannot be girt with a sword yet she may be cloathed with a mantle as it is in the Institutes f. 16. and so was it in the case of Ann Bullein that was made Marchioness of Winchester by King Henry the 8. and of the Lady Finch made Countesse of Winchelsea by King Iames 6 Iac. Pasch 1. but in this Case there was a non obstante to dispence with the clause of investiture and in the viscount Barkleys case the patent whereby he was made Earl of Nottingham was adjudged naught for want of this clause 2ly It doth not appear by the patent that she is made an English Countess and then she hath no privilege 8 Rich. 2. Banc. Reg. 204. 11 E. 3. Banc. re 473. Neither is there any relation to the patent to any place of which she is made a Countess For although the patent be sealed with the English broad Seal this is not materiall for outlandish honours may be granted by the broad Seal of England 3ly The cause that she shall have privilege of an English Countesse is not material because she is not made an English Countess and she is no Countess to have privilege against the Common Law although she may it may be have her privilege in point of honour in the Marshalls Court and Heralds office because there is no publique good and service in making her a Countess 43 E 3.4 for being a woman she cannot be imployed in Arms or otherwise for the publique And an Embassador cannot have privileges granted him which do not concern him as an Embassador Dyer 60. and 1.1 H. 7. rot 24 C. Banc. The King cannot grant one to be exempted from arresting as it is in Cooks Mag. Char. Pasc 7 H. 8. rot 66 C. B. for the reason of that clause of Magna charta nulli negabimus Iusticiam The King cannot grant a Sanctuary to protect men from the arrests of his subjects 29 Ass 34. Keiw 190. And there is no instance to be given of a woman made a Countess that was ever frée and protected from arresting In the Statute of 20 H. 6. C. 9. for Earls wives and 21 H. 8. to qualifie Chaplains there is no notice taken of Countesses by creation but only of Countesses dowagers or Countesses by descent 6 rep 9. C. de Rutlands case and Ann Bullein was tryed per pares as she was Queen and not as she was Marchioness of Winchester And further the privileges of Earls and Countesses are now extinct for the cause of those privileges viz. the King and house of Lords are extinct and gone and the privilege of being free from arrests is a privilege executory and not executed Neither doth the sufficiency of their possessions only give them the privilege not to be arrested but their publique scrvices to the State which is the final cause of the privilege and the other was but a partiall cause and not the sole cause Reliefs were payed by Barons and Earls when Earldoms and Baronies were created but they are not now payed as they were then but according to the value of the possessions now and Amercements of Earls and Barons were equall The privileges of Earls and Barons was derived originally from Soldiers after it was derived to Bishops and great Counsellors and so it appears that they were privileged in respect of publique imployments and not by reason of their revenues All the Abbots and Priors had the privilege not to be arrested yet all were not Lords of the Parliament 21 E. 3. Mich. 59. Tres Mich. 7 H. 7. pl. 7.31 E. 3 process 54.27 H. 8.7.7 H. 6.11.29 E. 3. f. 30. Dyer 315. And a Iudgement without a Capiatur was in Trespass against a Bishop because the King was to have no fine 14 H. 7.21 But it is not so in a temporall peer where the King is to have a fine The privileges have severall expressions and the reasons for the privileges of the lay peerage is fully expressed in the Writs directed to them Regist 287.247 Rast Exigent Britton 88.10 H. 4.15 per Hull 14 H. 6.2 per Newton 39 E. 3. f. 35. Hill 14 Eliz. Dyer 314.3 H 6. f. 38.48 E. 3. f. 3.35 H. 6.46 for other privileges they are not allowable And now also all tenures as well as the House of Lords is taken away by the late Act and though her privilege do continue yet she hath not taken the right way to have it allowed for she ought to have brought a writ out of the Chancery to have it allowed and not to have done it dy a dilatory plea 8 H. 6.9 10. and the Patent cannot try whether she be a Countess or not 9 rep 31. Inst 16 b. 6 rep 63. And lastly mischief and misery will ensue to many if this privilege should be allowed and the very matter speaks for it self and so he prayed judgement for the Plaintif Hales of Councel on the other side prayed the privilege might be allowed and he followed Latch in the points of this Argument And first he said that the thing grounded by the Patent is only in creation of the dignity and there is no need here of investiture for if there were then a recital of it should be also necessary but because it needs not therefore it needs no recital of it in the Patent Seldens Tit. of honour f. 876.21 R. 2. There is a recital of an Investiture but there was no Investiture and so it was not material and a non obstante is to no
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
Reg. MEmorandum on Wednesday the 14 of November 1648 Henry Roll Serjeant at law then one of the Iustices of this Bench took his place in Court as Lord chief Iustice of England and Twisden moved for a day to plead between Dunch and Smith being the first motion that was made in Court after he took his place The Lord chief Iustice Roll first took his place Popham against Hunt Mich. 24 Car. Banc. Reg Mich. 23 Car. rot 558. POpham brings an Action of Covenant upon an Indenture against Hunt Demurrer to a Declaration in an action of Covenant the Defendant demurs to the Declaration and the Plaintiff joyns in the Demurrer Vpon the pleading the Case appeared to be this a Feme sole delivers a certain sum of mony into the hands of I. S. and the Defendant thereupon Covenants with the Feme to pay unto A. B. 100 l. a yeer so long as the mony should continue in the hands of I. S. The Feme takes Baron The hundred pound per annum is arrere The Baron makes his Executor and dyes and after his death the 100 l. a yeer is behind also Popham the Executor brings this Action of Covenant Covenant and the question was whether the Action was well brought and the Court held the Action did lye for the Covenant doth concern the Executor because he represents the Testator but the question here is whether the rent due after the death of the Husband ought to be paid and how it shall be known whether he be dead for it is not specially alleged and if he be not dead there is no cause of Action Therefore consider of this Bragg against Nightingall Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 601. BRagg brought an Action of Covenant against Nightingall upon an Indenture Demurrer to a Declaration in an action of covenant The Defendant demurs to the Declaration The Case was this The Plaintiff let by Indenture certain houses for divers years to the Defendant and covenanted with him to repair the houses by such a day expressed in the Indenture The Defendant by the same Indenture covenanted with the Plaintiff that from the time that the Plaintiff was to repair the houses unto the end of the Term for which they were demised he would well sufficiently repair and leave them so repaired at the end of the Term for not performing of this Covenant on the Defendants part the Plaintiff brought his Action The cause shewed for the demurrer to the Declaration was that the Plaintiff had not shewed that he on his part had repaired the houses according to his Covenant and so the Defendant supposed he was not bound to repair because he was to repair from the time the Plaintiff had repaired them and not before and so there is no cause of Action After divers motions Roll chief Iustice said That here was a reciprocal Covenant to be performed on each part Covenant and although one do not perform the Covenant on his part this doth not excuse the other party but he is tyed to perform his Covenant neverthelesse and if he do not an Action lyes against him and he may bring his Action also against the other that first broke his Covenant and therefore the Action lyes here against the Defendant and so the demurrer is not good upon the cause shewed But if this were not a reciprocal Covenant the Law would be otherwise and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good for that it appears that it was the intent of both partyes that the Plaintiff should first repair and after that the Defendant should keep the houses in repair The Court would advise Smithson against VVells Mich. 24 Car. Banc. Reg. SMithson brought an Action upon the Case upon a promise against Wells A special verdict in an action upon the Case upon a promise and declared upon a promise made to save the Plaintiff harmlesse from such an obligation when he should be thereunto required The Defendant pleaded non Assumpsit and upon this a special verdict was found viz. generally that the Defendant did make promise to save the Plaintiff harmlesse from the Obligation that he had not done it The question hereupon was whether the verdict had found the same promise set forth in the Declaration because that was to save harmlesse upon request Verdict but the promise in the verdict mentions no request to be made but finds a promise generally to save one harmlesse The Court held that the Plaintiff ought to have Iudgment for that it was the same promise found in the verdict which was set forth in the Declaration for if one promise to save one harmlesse from a thing he that made the promise ought to do it at his perill without request Request Covenant and the request is not material although the promise say upon request But if he be damnified if I do recompence him upon request made the Covenant is not broken Emerson against Ridley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 400. RIdley brought an Action of Debt upon an Obligation against Emerson Error upon a Iudgement in Debt upon an Obligation The Condition of the Obligation was that the Defendant should not put his Cattel upon such a Common before a tryal and proof for the Common should be for the Commoners and assigns a breach that he did put on his Cattel upon the Common before the Tryal for the Commoners upon this an Issue was joyned and a verdict and a Iudgement for the Plaintiff The Defendant brings a Writ of Error and assigns for Error that the breach of the Condition assigned doth not agree with the Condition of the Obligation and so the action being brought upon the Obligation and no breach of the Condition being rightly assigned there appears no cause of Action and so the Iudgement is erroneous But it was said by the Councel with the Defendant that tryal and proof of a matter in common intendment is all one Intendment and so the difference alleged was only verbal and not real and it shall be taken to be a breach of the Condition and so there is good cause of Action and the Iudgement thereupon given is well enough Holhead on Councel on the other side denyed it to be all one in sense for that a Tryal may be and yet the Title may not not proved and there may be a Iudgement upon a Nihil dicit where is nothing proved and so concluded the Writ of Error did lye The Court desired to have Books Postea Jones against Iacob 24 Car. Banc. Reg. IOnes a Citizen and Pewterer of London Iudgement in an action upon the Case brought an Action upon the Case against Iacob for these words spoken of him He is gone and doth hide himself for debt and for ought I know he is a Banckrupt The Plaintiff had