altogether a drone for so many years together in so famous a Society amidst so many learned men to the dishonour thereof and to my one reproach I did at last resolve notwithstanding the unavoidable censures which I was confident I should meet withal what ever I have or could say to avoid them to give way to this publication of them even in this age wherein most of the Cases and matters herein reported are yet fresh I suppose in the memories of many who may easily trace me where ever I step awry But I hope to find them not only just in vindicating of me in that which I have truely and faithfully reported but also favourable in censuring and passing by those slips and misprisions they may herein meet withall caused either by the Printers negligence or my own misapprehension of the sense of the matters and things delivered and spoken unto and the rather in regard that I have endeavoured as neer as I could to render things in the same expressions they were first uttered that so I might as much as might be avoid the danger of injuring of any herein concerned by putting another sense upon them than what they intended and this as it was the old way so I conceive what ever may be objected to the contrary that it is the best and cleerest way of reporting For those that make it their businesse to censure and not to read or understand books I shall say nothing to them but leave them to abound in their one sense if they have any and to please themselves with their own phansies I have made these Reports speak English not that I believe they will be thereby generally more usefull for I have been always and yet am of opinion that that part of the Common Law which is in English hath only occasioned the making of unquiet spirits contentiously knowing and more apt to offend others than to defend themselves but I have done it in obedinece to authority and to stop the mouths of such of this English age who though they be as confusedly different in their Minds and Iudgements as the builders of Babel were in their languages yet do think it vain if not impious to speak or understand more than their own mother-tongue Some may peradventure Notwithstanding the reasons I have formerly offered for this my publication be ready to object that it was vain glory and a too confident boldnesse and high conceipt of mine own abilities that makes me thus appear in publique but those that know me I believe are of another opinion and dare clear me of this aspersion and well they may for the truth is I have alwayes been and yet am so naturally distrustful of my own parts that I fall far short of that necessary boldnesse which is requisite for every man to be armed withall in the excercising of publique employments and what losse I have suffered by the want of this I my self do best know and is not unknown to many some of whom have out of their well-wishes to me and others to my disparagement as they thought been pleased to take notice of it If any of the Cases and matters herein conteined seem common unto any and are to insipid to please their curious Palates let them passe them over It may be they may prove usefull to others and I doubt not but the most curious may find many things that may give them delight and satisfaction And in the farther vindication of these Reports I shall desire all to take notice that first these were most of them taken in unsetled times wherein the Law was almost at a stand and therefore it cannot be reasonably expected they should be so quick and full of matter as those that have been gathered when the Laws flowed in a more open and uninterrupted Chanell when the Courts of Iustice were full fraught with businesse and were in a more splendent and flourishing condition than in these latter times and next that this work is not a collection only of some choice Cases taken by several hands in all the Courts of Westminster but is only a continued narrative of the Cases and proceedings of the new upper Bench Court for 10 years together and taken by one only hand without the help or assistance of any other during which time I have omitted but little saving when by reason of sicknesse I was for a Term or two constrained to be absent And the more to encourage all to the perusall of them I dare affirm that there is much various matter contained in them different from what is to be found in other Reports taken in former years occasioned by the many alteration of the face of things and the changes of government happing at this time and also by reason of my constant observing inserting and interweaving of all the remarkable passages transacted on the Criminal side with those hapning on the Pleas side which in other Reports hath very sparingly at any time if at all been performed I have also for the Readers greater ease and benefit added hereunto three Alphabetical Tables the first containing the names of the several Cases a second containing the several general Heads or Titles under which the several matters dispersed through the whole book are properly digested and the third and last being a large Table particularly directing to the Page and Case wherein you may find the subject matter methodically ranged under those Heads or Titles And for your further and fuller satisfaction and making the Cases the cleerer proof and more authentical authority to be cited and given credit unto you have the number Rolles prefâ—ixed to most of those that are remarkable amongst them I might and would if I had thought it necessary have much enlarged these Reports and made the volume swell to a far greater bulk But my aim and endeavours have generally been to take the chief points only and substance of the matters arising and spoken unto and the rational parts of the arguments and authorities used and urged to inforce and prove what was surmised to be Law on either side and the grounds and authorities upon which the opinions and resolutions of the Court are framed and given and to passe by all the luxuriant flourishes of wit and the multiplying of Similary Cases to the Cases in question as serving more for the most part to prove the curious phansy much reading of the Arguer than the proof of the points of the cases in question or the satisfaction or information of the Auditors or Readers Iudgment and I have ever yet with submission to better Iudgements conceived this concise way of taking Reports to be farr more beneficial and delightful not only to the Reporter but also to those that shall read them then that long and tedious way wherein the truth is so overshadowed with multiplicity of words that it is very difficult through those Clowds to discover and behold her perfect beauty so well as when she appears bare-faced in
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
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
Iustice You might have demurred for this doubleness for one cannot assign an error in fact and another error in Law in a Writ of Error for this is double Hales It is true but we have lost that advantage Adjourned to be argued again the next Term. Robinson against Mich. 23 Car. Banc. Reg. RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass and hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good for the Plaintiff amongst other things declares that the Plaintiff had found and converted to his own use unum vestigium Anglice a Footstool whereas it signifies a Footstep or a print of the foot and not a Footstool 2ly The Plaintiff declares pro decem ponderibus Aeris meaning ten pound of Brass whereas it should be aeris with a Dipthong for Aeris is of Ayr and not Brass But this exception was over-ruled by the Court because in the writing of Court-hand in which hand Declarations are written No Dipthongs in Court-hand there are no Dipthongs used and so the word Aeris might as well signifie Brass as Ayre But for the other exception judgement was stayed till the Plaintiff should move Izack against Green Mich. 23 Car. Banc. Reg. Izack brings an Action upon the Case in London against Green For a Procedendo to try an action in London for calling her Whore Green removes the cause by a Habeas corpus into this Court and hath a Supersedeas to stay the Plaintiffs procéedings in London The Plaintiffs Councel moved for a Procedendo that he might procéed in London because that in London by a special Custom there an Action doth lye for calling a woman Whore though out of London it lyes not and cited Pascal and Barbars Case 21 Iac. to prove it Bacon Iustice The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it and we are not to take notice of it upon a surmise and it seems that a procedendo should not here be granted Procedendo Notice because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it and not to our Law as it is 2 H. 4. Roll Iustice One may in some Cases have an Action at the Common law where he may have remedy also in the Ecclesiasticall Court for the Common law is to be preferred and by a special custom as the Case here is an Action may be maintained where it lyes not at the Common law and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case the Plaintiff would be tyed up by the habeas corpus but if it be granted the matter may be tryed and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London and so all the matter may come in question to be argued Action and he said that a Charter cannot give an Action which the Common law allows not But let the matter rest as it is till we can agree Mich. 23 Car. Banc. Reg. THe Plaintiff brought his Action upon the Case Arrest of Iudgement in an action upon the case for these words thou muttron-monger theef bring home my stolen hay The Defendant makes a special justification that the Plaintiff had stollen a sheep and upon this was an issue joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement that the Declaration was not good for it only chargeth the Defendant with speaking of the words and doth not say dixit de querente and though those words be in the replication yet that makes not the Declaration good Roll Iustice The Declaration is not good for the words may be spoken of any other body as well as of the Plaintiff Bacon Iustice agrees with Roll and said that the word dixit was not in the Declaration and so it appears not whether the Defendant spoke or writ or thought the words and which is more it is not said that the words were spoken in the presence of any body and then they cannot be scandalous Roll Iustice said one cannot rejoyn upon words which are not in the Declaration nor in the plea for if the Declaration and the plea be naught Replication the replication cannot make them good The rule of Court was nil capiat per billam except cause shewn Saturday following Kinpe against Iohnson Mich 23 Car. Banc. Reg. Pasc 23 Car. rot 154. A Writ of Error was brought to reverse a Iudgement given in Hull Error upon a Judgement in Hall Continuance for these Errors assigned 1. That one of the continuances was to a certain day of the mouth where it ought to be ad proximam curiam 2. The Declaration was pro se decem bestiis Anglice Cows or Whyes which is too general for the word bestia may signifie any beast whatsoever as well as a Cow The Iudgement was reversed except cause shewn to the contrary More against Clipsam Mich. 23 Car. Banc. Reg. MOre brings a Replevin against Clipsam Argument upon a Replevin and declares of a hundred oves Matrices et vervices distrained by Clipsam Clipsam demurs to the Replevin for the incertainty of it for it appears not how many of the hundred sheep distrayned and replevied were Matrices or ewes and how many were vervices or weathers Maynard moves for Iudgement in the Replevin for the Plaintiff and held that centum oves alone was good and certain and the addition Matrices and vervices shall not make an incertainty Incertainty and the writ of Replevin doth not shew the cattell distrained particularly but the help of the party and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ 2ly Here is a good issue argumentative although it be not so formal 3ly Issue There is no more in the issue at the Bar than in the avowry for all the Term is but one day ther is no division of time in it it is dangerous to make fractions Term. a Statute acknowledged in the Term relates to the first day of the Term. Statute Relation Hales on the other side agreed that centum oves without saying any more had been certain enough but as they are here distinguished into Matrices vervices there is no certainty at all for the Cattel in kind are demanded and ought to be delivered as they are demanded so that if the demand be incertain there can be no certain delivery 2ly The issue is ill and is not helped by the verdict for 1. the title made is not answered 2. Traverse The traverse is only to the conclusion and so is but by way of inference and is not helped after a verdict for the plea is not answered Advantage for the words
not say the Commission of Sewers was under the Great Seal as it ought to express 7 Car. Allen and Carter 5 Car. Rayl and Mannings Case and Pasc 14 Car. Hungates Case and because it is not so set forth there can no Issue be taken whether they be Commissioners or not 2ly The Commission is not well pleaded for it appears not that thrée of them were of the quorum as the Statute appoints there should be 3ly The Retorn is in English and it ought to be in Latin But to this Roll Iustice answered Retorn That the Retorn is good notwithstanding for the Commission is in English 4ly It doth not appear that Harts-horn lane touching which their orders were made is within VVestminster and so it cannot be well-known whether it was within their power by vertue of their Commission to make any orders touching that place Hales of Councel for the Commissioners moved the Retorn might be amended But the Court answered It could not be Amendment because the Retorn was made the Term before And it was ordered that cause should be shewn Tuesday following why the Retorn and Proceedings should not be quashed The King against Page and Harwood Hill 23 Car Banc. Reg. THree men were endicted at an Assises in the Country for Felony Qustion upon the Statute of Stabbing whether Principle or Accessory Principle Accessory for killing of a man the Endictment was framed upon the Statute of 1 Iac. made against Stabbing They were all found guilty He that did the fact was condemned and executed but because the Iustice of Assise doubted whether the other two wers Principles within that Statute or but Accessories they would not proceed to Iudgement against them Whereupon they were brought to this Bar to be proceeded against for the Felony and the doubt was in regard they were only present and abetting the person that did the fact and used no Action towards the death of the party whether they were Principles within the Statute or but Accessories Roll Iustice said They are not Principles Clergy but Accessories and ought to have their Clergy for the Statute of Stabbing being a penal Law it shall be taken strictly and not extended to equity and in Swinertons case Bramston Barkley and Iones thrée of the Iudges of this Court directed the Iury the Case being of the same nature with this to find the parties only accessory But the Iury in our Case have found them guilty as Principles and I doubt upon that whether the Tryal be good or no. Tryal Walker of Councel against the Prisoners said the Statute of Stabbing makes no new offence and therefore it is doubtfull End ctment wheher it be necessary for the Endictment to conclude contra formam Statuti Roll Iustice said it ought to be so But Bacon Iustice doubted The Court admitted the Prisoners to their Clergy and they were burnt in the hand in view of the Court by the Hangman of London and the Prisoners bound each for the other to their good behaviours and to appear in Court the next Term. Hales against More Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 382. A Iudgement was given in an inferiour Court in an Action of Debt Error upon a Iudgement in Debt Demand Venire and a Writ of Error brought in this Court to reverse it The Errors assigned were 1. The plaint is entred generally de placito debiti which is uncertain so that the Defendant cannot know what is demanded 2ly In the awarding of the Venire it is duodecim c. and doth not say probos legales homines Bacon Iustice Duodecim in the Venire with an c. is not good in an Inferiour Court but this is in the awarding of the Venire and therefore well enough but the first is a good Exception in my Iudgement Therefore let the judgement be reversed except cause shewn to the contrary The King and Corye A Writ of Restitution issued out of this Court for one Corye to be restored to the Recorders place of the City of Norwitch To be restored to a Recorders place which was returned and filed Hales of his Councel opened the Retorn and cited Stroods Case that one ought not to be removed from any office without shewing good cause why he is removed which is not here done but only a Custom set forth whereby they shew they had authority to elect a Recorder for a year only and at the end of the year to elect another and that by vertue of this Custom Custome they had chosen another Recorder in the parties place he having béen in a whole year which he conceived to be an ill Custom Roll Iustice said If this be a void Custom none of the two Recorders were well elected and so Cory cannot be restored And Bacon Iustice did also doubt whether any of them were well chosen It was said that the Retorn is not traversable but shall be taken to be true Bacon Iustice held Traverse Retorn That the Retorn was not good and you must have an Alias that we may have a better Answer before us for nothing can be done upon this But the Court enclined that a Recorder may be elected for one year It was said If a Custom be entire you cannot make one part of it good and another part of it ill The rule was for the party to take an Alias because this Retorn is not good and it is too late to amend it because it is filed Amendment The King and Symmons IN an Endictment of forcible Entry upon the Statute of 8 H. 6. divers Exceptions were formerly taken To quash an Endictment uâ—on the Statuâ—e of 8 H. 6. Roll Iustice answered to that that the Endictment did not say contra Coronam dignitatem it was well enough without those words Another exception was now taken that the Endictment is ad tunc ibidem which is repugnant This Roll Iustice over-ruled but he doubted whether the Endictment ought to be contra formam Satutorum or contra formam Statuti as it is because this Endictment is framed upon divers Statutes Bacon Iustice cited the 4th Rep. the Case of Appeals and said it is good as it is contra formam Statuti and said that a forcible Entry and Deteyner is punishable at the common-Common-law Common law The Court desired to see Presidents Antea Hill 23 Car. Banc. Reg. MAynard shews for cause why a Prohibition should not be granted to the Admiralty For a Prohibition notwithstanding a Consultation granted That the parties have moved this matter in the Common-pleas and did there joyn issue upon the same and a verdict passed against the Prohibition and a consultation was thereupon granted The Councel on the other side makes another suggestion viz. that the sentence in the Court of Admiralty was against a person that was dead and that one of the parties who had the sentence had released To this the Court said you
Plaintif demurs The Court said this Debt due upon the bond became not due to the Husband for it is a thing in Action and therefore the plea is not good Iones against Blunden Hill 1649. Banc. sup Mich 1649. rot 34. THis Case formerly spoken to was again moved by Wild Whether a good tryal or no. who held that in regard that the matter triable ariseth from two places and so the venire may be from both places yet it is well enough if it be from any of them and the Court hath jurisdiction in both places and therefore the tryal is well enough in this case Twisden on the other side said that here are two issues in tryal and so it is not within the Statute of Ieofails for that is of force only where one issue is tryed Roll chief Iustice answered here are not two issues for you have made them one by pleading and so it is within the Statute of Ieofails and helped by it Ierman Justice to the same intent Issue Ieofails and so Nicholas and Ask Iustices Roll chief Iustice said that the issue is joyned upon the matter arising in both places and yet it is well enough for the principal matter was in Sâ— Clements Danes Therefore let the judgement be affirmed except better matter be shewn Antea Adstone against Hunter Hill 1469. Banc. sup ADston brought an Action upon the case against Hunter and his Wife for these words spoken of the Plaintif by Hunters wife Arrest of Iudgement in an Action on the Case viz. Iane Adstone did bewitch my good man innuendo her Husband Vpon Not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of judgement that the words were too general and uncertain to raise any scandal and therefore an Action could not be brought for speaking of them Shaftoe of Councel with the Plaintif held that the words are actionable because they declare an Act or thing done and the party is scandalized by the words 4 rep â—eames his case and the words my good man are words well known to express her Husband by as 7 Iac. to say Thou art a healer of Felons was well understood to mean a Concealer of Felons and if the words good man be incertain yet they are certain enough to shew that some body is bewitched for the Act done is certainly enough expressed and the Plaintif is thereby scandalized and besides it is after a Verdict and by it they are made certain and damages are given for speaking them Mich. 15 Car. Com. Banc. Stones case rot â—36 Roll chief Iustice said These words Thou hast bewitched a man are actionable it is a scandal to say One hath killed a man by Witchcraft and he held the words actionable Ierman Iustice said they could not be actionable because by them there is no act of witchcraft expressed Nicholas Iustice said the words are not actionable for thou hast bewitched one may be spoken in a good sence words are but wind spoken in passion sometimes and other times in Iest or merriment Ask Iustice said that the words tend to scandal as they are spoken Averment and shall be intended that she hath bewitched one by Diabolical Art And Roll chief Iustice said It is not necessary to aver what Act of Witch-craft was done And these words Thou hast bewitched me and my Aunt have been adjudged Actionable in this Court It was adjourned to be argued again the next term Hill 1649. Banc sup THe Court was moved to quash an Order of a private Sessions of the peace that was removed hither by Certiorari The Order was To quash a Order of a private Sessions of Peace that one should contribute to half the charge towards the keeping of a Bastard Child because he did suffer a Souldier to get the Child upon the body of his Maid servant The Court said this was not within the Statute of 18 Eliz. and therefore let the Order be quashed Hill 1649. Banc. super A Prohibition to the Court of the Admiralty was prayed for Biâ—ckes a Clark of this Court for libelling against him there for prosecuting a matter at the Common Law which they pretend to belong to their Court For a prohibition to the Admiralty and for granting an injunction against him to stop his proceedings The Court answered there is no libel here this is but a citation to appear and is no Injunction against him but because upon the citation there appeared to be matter of Prohibition contained in it A Prohibition was granted Saunderson against Raisin Hill 1649. Banc. sup VPon a rule to shew cause why a Iudgement should not be reversed To amend a Record after Errore assigned the Court was moved that the Roll wherein the Error assigned was might be amended according to the Original which is right though the Nisi prius Roll be not so Holhead on the other side prayed there might be no amendment but the Iudgment reversed for if Iudgement be given upon an erronious Declaration which is the ground of the Action as it is here it is not good nor is amendable The Court answered this is the fault of the Clark who had the original before him which is the ground of all Amendment and by which he ought to form the Declaration But the matter is that here it is after a Verdict and it will be perillous to attaint the Iury though it being the Clarks fault it be amendable But let it rest till the next term and in the mean time we will advise Williamson against Mead. Hill 1649. Banc. sup Mich. 1649. rot 428. VVIlliamson brought an Action upon the Case against Meade Arrest of Judgement is an action upon an Assumpsit and declared upon three Assumpsits made by the Defendant to the Plaintif that the Defendants son should pay such a sum of money to the Plaintif for his boarding with him when he should be thereunto required upon non Assumpsit pleaded and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement That the Plaintif doth not shew that he did require the Son to pay the sum of money which the Defendant did assume should be paid upon request but only saith that the Defendant licet saepius requisitus non solvit The Iudgement was arrested till cause should be shewn to the contrary The same day it was moved again and the Councel urged that the request was not necessary to be made and prayed for judgement But Roll Chief Iustice answered that this was a collateral promise Request and therefore the request must be averred to be made to the Son Therefore the Plaintif can have no judgement and so nil capiat per billam was ruled to be entred Hudson Hill 1649. Banc. sup THe Court was moved that there was a scire facias issued out to certifie Errors For time to assign Errors and time was desired to assign them But the Court answered
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 Statute of limitations of Actions in Bar of the Action to this Plea the Plaintif demurred Hales held that this action grounded upon the Statute is not within the Statute of limitations of Actions of 21 Iac. because it is not a meer Action on the Case at the Common Law but an Action upon the Case grounded upon the Statute of Monopolies But Twisden on the other side said that a Monopoly is an offence at the Common Law Monopoly for which an Action of the Case did lie before the Statute and that the Statute was made but to inflict a greater punishment for the offence and so it is within the Statute of limitations of Actions And 2ly the very words of the Statute say that all Actions shall be brought within six years and he that says all without limitation Statuâ—e of limitations excludes none and by consequence this Action is not excluded 3ly The end of the Statute of limitations was to quiet sales and therefore the Statute shall be largely interpreted because made for so publique a good Adjourned to the next term to be argued again Pasch 1649. Banc. sup VPon a verdict given against a Hundred that was sued in an Action upon the Statute of Winchester of Hue and Cries Arrest of Iudgement in an Action upon the Statute of Winchester Bill Original It was moved for the Hundred in Arrest of Iudgement that the Hundred was sued by Bill whereas it ought to have been sued by Original But the Court over-ruled the Exception and said that there are many Presidents to prove that such Actions may be commenced as well by Bill as by Original Pasch 1649. Banc. sup LEtchmore moved to quash an Inquisition taken against one upon the Statute of West 2. for the throwing down of Enclosures To quash an Inquisition denied But the Court answered that it was not proper to move to quash the Inquisition because the Defendant came in upon process and therefore he must either traverse or plead to the Inquisition Letchmore replyed that the Inquisition was so uncertain that the Defendant could not tell how to plead to it Plea Traverse But the Court answered he might plead to the Distringas And that the monies already levied for the offence should rest in the Sherifs hand until the tryal Hamond against Ireland Pasch 1649. Banc. sup Hill 1649. rot 818. VPon a Verdict given in an Ejectione firmae Arrest of Iudgement in an Ejectine firmae It was moved in Arrest of Iudgement that the Plaintif declares that the Defendant ejected him ex uno Cottagio whereas an Ejectione firmae lies not of a Cottage no more than a praecipe quod reddat lies of a Cottage But the Court answered that an ejectment doth lie of a Cottage because the description of the thing by that name is sufficient and certain enough to shew the Sherif of what to deliver the possession of Ejectment Recovery yet it was said that a recovery lies not of a Cottage Rethorick and Chapels case 10 Iac. was cited that an Ejectione lies of a Cottage and also a praecipe quod reddat VVood against Topham Pasch 1649. Banc. sup VVOod brought an Action upon the Case against Topham quare filium suum haeredem rapuit et maritavit Arrest of Iudgement in an action upon the case and obteined a Verdict against the Defendant In Arrest of judgement moved for the Defendant these exceptions were taken against the Declaration 1. That it doth not say haeredem apparentem but only filium haeredem 2ly It doth not say rapuit contra voluntatem but only rapuit 3ly It doth not set forth that the heir was within age 4ly It doth not say Cujus maritagium ad ipsum pertiner But the last Exception only was insisted upon Wilmot of Councel with the Plaintif to proove that that Exception was not material cited one Grayes case Pasch 29 Eliz. Banc. reg and the Books of 12 H. 4. f. 16. and 23 E. 3. Brook Tit. Trespass 43. But Hales urged that the last Exception was not answered Case Roll chief Iustice said That an Action quare filium haeredem suum rapuit will lie although the heir be of full age for the Father hath the mariage of his Son although he have no estate to leave unto him Adjourned to the next Term. Postea 227. Dawkes versus Payton Pasch 1469. Banc. sup Pasch 1650. rot 306. AN Infant brought an Action in this Court Error brought in the Upper Bench upon a Iudgement given there and had a Verdict and a Iudgement the Defendant brought a writ of Error in the same Court to reverse this judgement and it was assigned for Error that the Infant brought his Action in propria persona whereas he ought to have sued per guardianum and this is Error at the Common Law and is not helped by the Statute of Ieofails and it was argued that the writ of Error may be well brought in this Court to reverse a judgement given here if the Error assigned be matter in fact as it is in this case for by such a writ of Error the judgement of the Court is not called in question as it would be if the Error assigned were matter in Law and these Books were cited Error viz. 7 H. 6. 28. Dyer 196. Mich. 25 26. Eliz. Banc. reg Hales on the other side argued that the writ of Error did not lie And he made 2 questions 1. Whether the writ of Error did lie at all 2ly If it did lie in an other Term and he said that admitting the writ of Error doth lie yet it ought to have been brought the same Term wherein the judgement was given but so it is not here and therefore it is not well brought And 2ly If the Error assigned be Error yet it is helped by the Statute of 21 Iac. of Ieofails But if it be not yet the Error assigned here is not assignable for it doth not appear whether the party appeared per guardianum or not for the party is a privileged person The Court answered we cannot know whether the party be within age or of full age and therefore know not whether he ought to appear by Attorny or by Guardian but for Error in matter of fact in a judgement given in this Court a writ of Error will lie here well enough and it is all one whether the writ be brought the same Term or in another Term. But bring us Books and we will advise Postea Viccarye against Barnes Pasch 1650. Banc. sup AN Action upon the case was brought by a Mercer against the Defendant for speaking these words of him Thou art a Cuckold Arrest of Iudgement in an Action upon the Case for words and a Cuckoldly Rascal and art not able to pay thy debts and art not worth a Groat The Plaintif had a Verdict and upon a motion in Arrest of judgement because the words were supposed not
verdict finds 100 l. the Plaintiff may relinquish 60 l. and have Iudgement for the rest Ask Iustice said that his opinion was that the verdict is incertain and conceiveth that the Iury intended all in the Declaration The Court took time to advise Afterwards Iudgement was given for the Plaintiff Fitton against Richardson Trin 1651. Banc. sup THe Court was moved for a prohibition to the County Palatine of Chester For a prohition to the County Palatin of Chester upon a surmise that they did proceed in the Court of equity at Chester touching the payment of rent reserved upon a lease for years which is a matter tryable at the Common Law and not in a Court of equity The Court answered we will see the Bill whether there be any matter of equity laid in it or no for if there be we will not grant a prohibition and let us also see some presidents if there be any for granting of a prohibition in such cases Powis who moved for the prohibition replyed That in Chester they hold two Courts one for matters of Common Law and another for matters of equity and so they ought to observe the due proceedings in each Court according to the nature of the cause 2ly This Court of the upper Bench is the superintendent Court over all other Courts and a writ of Error lyes out of this Court to Chester and by consequence a prohibition also to restrain the Court of equity there if they shall proceed irregularly 3ly There would otherwise be a faller of justice for the Court of Chancery here cannot grant a prohibition because the matter they proceed in there is no matter of equity Nat. brev f. 44 H. I. Cook rep Corbets case Hob. rep case 98. Owen and Holts case And though a writ from hence doth not run there nor in Wales yet a prohibition is grantable to Wales and therefore why not to Chester Mich. 2. Jac. B. R. a habeas corpus was granted to the County Palatine of Durham and to Barwick and Trin. 1650. C. B. rot 1966. in Iones and Lennards case a prohibition was granted to Chester Nicholas Iustice cited a case to be adjudged in this Court by Cook chief Iustice that it will not lye de brevi ordinario but in Wales it will ly Hales answered that there is more here than matter of equity and writs mandatory will lye in all places Roll chief Iustice said that Chester hath a Court of upper Bench and they may grant a prohibition there and it appears not to us whether they will grant it or not Prohibition so that we know not whether we need to intermedle Hales replyed that every one is bound by the Common Law and therefore writs mandatoryly at the Common Law which generally concern men as subjects and not concerning private things And 1. It is to be considered that Chesters jurisdiction is derived from this Court and so it is supposed to be subordinate to it and is to be regulated by it 2ly When the matter concerns common right it is not affixed to Chester because it concerns men as subjects at large 20 Iac. Grigs case C. Banc. And this Court sat in Chester in the 22 year of Ed. 1. as may appear by the roll Hill 31. Mich. 29. E. 3. rot a habeas corpus was granted to Durham and the liberty seised into the Kings hands for disobeying it and this Court is the conservator of the liberties of Chester Roll chief Iustice demanded can we grant a prohibition to the Court of equity in Ireland Prohibition If there did appear to be any failer of justice here we would grant a prohibition but there appears not any failer for it may be the party may have a prohibition in the upper Bench there Therefore it is good for us to hear the other party and in the mean time we will advise and then let us see the bill in Chancery In this case Halâ—s said that a prohibition had béen granted to the Lord Maiors Court of London Style against Tullye Trin. 1651 Banc. sup Hill 24. Car. rot 587. SIr Humphrey Style brought a writ of Error to reverse a Iudgement given against him in an Action of debt upon an obligation in the Common pleas for Tullye and Acton Executors of the last Will and Testament of one William Tullye Error to reverse a Iudgment in debt upon an obligation The case was this Sir Humphrey Style and one Thomas Brook were joyntly and severally bound unto William Tullye in an obligation of 120 l. for the payment of 60 l. at a certain day After the day of payment and the mony not paid Thomas Brook makes his Will and makes Mary Brook his wife his Executrix and dyes afterwards William Tullye makes his will and makes Tullye and Acton the Defendants in the writ of Error his Executors and dyes and by his will he releases unto Mary Brook all the debts which Thomas Brook her husband did owe unto him at the time of his death Tullye and Acton prove this will and after bring an Action of debt against Sir Humphrey Style in the Common pleas upon the obligation of 160 l. Sir Humphrey Style demurs to the Declaration and for cause shews that William Tullye by his will had released the Debt to Mary Brooks and upon this demurrer Iudgement was given against Sir Humphrey Style and thereupon he brings his writ of Error wherein the question was whether the debt was released by the will or no Latch of Councel for Sir Humphrey Style argued that here was an actual release and he cited 21 E. 4. f. 8. and a case Trin. 10. Car. and said that a will amounts to a release although it be not made of incorporeal things and the assent of Mary the Executor is not necessary here for this is not like the assent to the accepting of a Legacie and a debt due upon an Obligation made to the Testator is not assets in the hands of an Executor untill it be recovered and this is more than in the nature of a Legacy and here was a great personal Estate and no other creditors are deceived by this release and a devaslavit cannot be here supposed 19 H. 8. Dyer 8 E. 4. f. 5. Dyer 139 Cranmers Case and here is only an exoneration of a thing and no donation of any thing by this release Serjeant Hen. Clark of Councel on the other side argued that the debt was not discharged by the will because this release made by the will cannot take effect till after the death of the Testator and so not at all and such a release was revokeable by the Testator during his life and therefore it cannot be said that it was ever an absolute release But if this release had been in the realty it might peradventure have béen otherwise but it is not so here for the debt now rests in the Executor and it is a devastavit in the Executor to release it for this is but
him Wild in Arrest of Iudgement takes these Exceptions to the Declaration 1. It saith that the Principal rendred himself in Execution to discharge his Bail and saith that afterwards he escaped whereby he could not have him in Execution which séems contradictory to what he formerly said 2ly He saith that he rendred himself to the Mareschall whereas he ought to say that he rendred himself to the Court for it is the Act of the Court that turns him over to the Mareschal Roll chief Iustice He cannot render himself to Sir Iohn Lenthal in discharge of his Bail Bail for only a Iudge can take and discharge a Bail and not Sir Iohn Lenthall but here it is that he did it in Court and therefore it is well enough for he may render himself to Sir Iohn Lenthall in Court though out of Court he cannot and therefore let the Plaintif have his Iudgement Rogers and Done Trin. 1652. Banc. sup Pasch 1652. rot 354. IN an Action of Trover and Conversion for 3 Cart loads of Dats Arguments upon a Demurrer to a Plea to the jurisdiction of this Court Barlie and Pease The Defendant pleaded a special Plea to this effect That the land where the Trover was supposed to be is 5 acres of land lying in B. and that is within the County Palatine of Chester and that he holds the land for term of years and by vertue thereof did sow and take the Corn thereupon growing and traverseth the Conversion out of the County Palatine and avers that there are Courts of Iustice held within the County Palatine so that Iustice may there be had and says that he ought to be sued within the County Palatine and not elsewhere and therefore demands Iudgement if he ought to be sued in this Court. To this plea the Plaintif demurred and shewed for cause that the Action being for a transitory matter it may be tryed out of the County Palatine as well as within although if it were for a local matter it would be otherwise and the party here hath pleaded not guilty which may be tryed any where Cooks Instit 282. In some Cases an Obligation hearing date at Chester may be sued in another place 19 E. 3. Fitz. Oar. 29.45 Ed. 3. Fitz. visne 50.9 Iac. C. B. Richardson and Meares a Battery in Chester tryable out of it 11 H. 4. f. 40. Crompton Iuriâ—diction of Courts f. 213. Transitory things emergent in the County Palatine of Chester may be tryed else-where 45 E. 3. f. 17. And so it was prayed the Defendant might plead over Serjeant Glyn on the other side held that this plea was a good plea to the Iurisdiction of the Court. Here are many matters of fact confessed and the matter in Law is whether the title of the land within Chester shall be tryed out of that jurisdiction In 31 Ed. 1. in the Exchequer it is clear they have conusance of Pleas. Roll chief Iustice to that answered but it is not that they shall not be removed thence Serjeant Glyn proceeded said that also upon a reference to 4 Iudges by Queen Elizabeth it was certified that all Actions real and personal arising in Chester are tryable there and not elsewhere 22 E. 4. Fitz. Iurisd 61. 21 H. 7. f. 23. 1 H. 7.26 10 H. 6.14 a H. 4. f. 25. As to the Objection that this is a clear personal Action and therefore transitory 1. I deny the authority of Cook in his 4 Institutes cited on the other side Next the Action here by the pleading of it is made real and then though Cooks opinion should be Law it comes not home to our case and a transitory action may be made real by the pleading of it 27 H. 6. f. 1. Hill 38 Eliz. Banc. sup Hill 2 Car. in Belamy and Bolthorps case in this Court 6 rep 14. A thing is tryable there where the best conusance of it may be had 6 H. 7. 3 2ly The averment of the party here is that all actions personal and real within Chester are tryable there and this being matter of fact is confessed by the Demurrer 9 H. 7. Porter Nicholls in the Exchequer 10 Car. And it would be a great inconvensence to try the title of lands lying within Chester out of it for so all causes real may as well be tryed in forein Counties even through all England which would be very mischievous Roll chief Iustice Tryall If we can avoid it it is not good to try causes in forein Counties but here you have by your demurrer confessed that all causes real and personal shall be tryed there and what say you to that 2ly Traverse Waiver Issue It is to be considered whether your Traverse be not repugnant to your Plea for you have waived the plea to the jurisdiction of the Court and put your self upon an issue by the traverse which you ought not to have done but you ought to have relyed upon your plea to the jurisdiction of the Court for as the traverse is taken untill a tryall be had in the cause we cannot tell whether the Trover and Conversion be within the County Palatine or out of it and this is matter of substance and tryable and therefore it would be hard to maintain your plea. At another day the case was argued again and first by Twisden for the Plaintiff and he took thrée things into consideration 1. Whether the plea were a meer plea to the jurisdiction 2ly Whether it be made good by the demurrer 3ly Whether the traverse have not spoiled the plea. 1. He held the plea was not good because the Action is meerly transitory and may be laid in any place 2. Mar. Br. traverse 983. Cooks Lit. f. 202. and the Defendant cannot plead that the cause of Action lyes in any other place than where the Plaintiff layes it Cooks Iurisd of Courts is full authority in point what ever is objected against it 30 H. 6. f. 6. I admit of the jurisdiction of the County Palatine but yet it must not entrench upon the Common Law and I admit all the books cited but they are of other local matters or of things transitory which are fixed to Chester by the pleading of them and Dyer 122 comes not to our case nor crosses the case of 10. Iac. 3. rep Ridgwayes case and here it shall be intended that the Iury may there have best conusance of the matter where the Action is laid and not else-where although the Action do savour of the Land For the second matter the demurrer makes not the plea good for the law sayes it is not good and the partyes cannot alter the Law Burtons case 5. rep f. 59. 5 H. 7.1 3ly The traverse makes not the plea good for the traverse is waived and he relyes upon another matter 5. Car. rot 817. Burton and Cornish the traverse taken took away the justification before pleaded so doth it here and the traverse here is not good because it is in a
the jurisdiction of this Court which cannot be and we are not now to examine the jurisdiction but the pleading Therefore shew cause Monday next why you shall not plead in Chief Griffith against Thomas Trin. 1652. Banc sup Mich. 1651. rot 340. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Debt upon an Obligation to stand to an Award Error to reverse a judgement in deb in the C. B. and the Errors assigned were 1. That whereas the Award was to pay a certain sum of money at or before the 25 day of December the breach assigned is that he paid it not at the 25 day 2ly Whereas there are 2 parties of one side and one on the other side that submitted to the Award The Award is that one party shall not prosecute the other 3ly The Condition is that the Award shall be made the 20 day of such a month and it is set forth that the Award was made before the 20 day and doth not say what day it was made But the Councel relyed upon the 1 Exception And to that Latch on the other side answered Award That if it be paid before the 25 day it is then payed at the 25 day 2ly The Condition requires the award to be made under their hands the subsequent averment is to no purpose And as to the 3. the words Alter partium extends to all parties and besides the breach is not assigned upon that Roll chief Iustice If it be paid before the day it is paid at the day and so that is certain enough 9 H. 7. Another exception was taken that the condition was that the Arbitrement should be put in writing by the Arbitrators and it is not so here expressed but only generally that it was put in writing Roll chief Iust It is not to be necessarily understood that it must be put in writing by the Arbitrators themselves Another Exception was taken that here is an Outlawry after judgement there is a fault in the Outlawry for in the Writ to the Sherif it is praecipipimus vobis instead of praecipimus vobis the year of our Lord is in Figures And 2ly it is secundum consuetudinem regni Angliae whereas it was in the time of the Kéepers of the Liberty of England Roll chief Iustice If the word be praecipipimus then there is no command to the Sherif for that word signifies nothing Therefore let the Outlawry be reversed and judgement affirmed Trin. 1652. Banc. sup IN an Action upon the Case the Plaintif declared Demurrer to an evidence that in such a High-way the Defendant digged a hole and that by reason of that hole as he was travelling in the way with his Gelding his Gelding did fall and hurt himself to his damage c. Vpon not guilty pleaded and issue joyned at the Tryal this evidence was given to the jury namely That the Plaintifs Servant was driving his Masters Gelding in the way being loaden with Lead and that by reason of the hole he fell c. To this evidence it was demurred and for cause it was shewed That by the evidence it neither is proved that there was such a way nor what person digged the hole both which are part of the issue to be tryed and so the evidence proves it not and therefore is not good to find the Verdict for the Plaintif as the Iury have done Roll chief Iustice This evidence is no more than a special Verdict and it ought to find the way and the hole digged and all the matter conducing to the issue and therefore it is not good as it is Verdict Venire Therefore let the Verdict be quashed and a new Venire awarded Heard against Read Trin. 1652. Banc. sup IN an Action upon the Case for words the Case was this Arrest of judgement in an Action for words the Defendant being brought before a Iustice of Peace to answer a crime objected against him the Plaintif appeared as a witness to testiffe against him whereupon the Defendant to weaken his Testimony did speak these words of the Plaintif before the Iustice of Peace Thou hast been a contentious man this 30 years and a Breeder of strife and hast taken a false Oath against my Brother and Sister in a matter of incontinency and hast taken 20 s. for it and I will shew it upon Record Vpon not guilty pleaded and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the words were not actionable because it is not said that he is perjured in any Court of Record but that he will shew if upon Record And 15 Car. Morton and Clapams case was cited but on the other side it was said that take all the words together they are actionable and Trin. 22 Car. Osborn and Brookes case was cited Roll chief Iustice The words are said to be spoken falso malitiose and it is not said in the Record that the party spoke them in his own defence and it may be they were spoken by the by and not in the judicial proceedings but it appeared upon reading of the Record Case that they were spoken to disable the Plaintifs testimony Whereupon Roll chief Iustice said That the Action did as well lie in this case as it doth lie for endicting one falso et malitiose for Endictments are more avoured in the Law than private matters between parties Therefore let the Plaintif have his Iudgement nisi Custodes against Howell Gwinn Trin. 1652. Banc. sup HOwell Gwinn was endicted of perjury Arrest of Iudgement in an Endictment for perjury for taking of a false Oath in an Affidavit made before a Master of the Chancery and was found guilty It was moved in Arrest of Iudgement 1. That it doth not appear by the Record that the Oath made was any thing material to the sute depending in that Court and so it is but an extrajudicial Oath and is not perjury either by the Common Law or by the Statute 2ly It doth not appear that the party took a false Oath for it appears not whether the Master of the Chancery had any power to take this Oath and if he had not then it cannot be perjury Latch enforced the 2 Exception and said That a Master of the Chancery hath not power ex Officio to take an Oath and therefore the party ought to shew that he had power to take this Oath but if he hath power he ought not to take it upon the holy Evangelists as it is here expressed but it ought to be upon the holy Evangely for the form is super sacro sancto Evangelio and not Evangelistis Maynard on the other side prayed judgement and that the party may be fined and answered that it doth well appear that the Oath was made touching the cause in question and the Endictment is here laid at the Common Law and not upon the Statute Next it is not necessary to
shew that a Master of the Chancery hath authority to take an Oath for it is the common course and practice of the Court of Chancery for the Masters to take oaths and the Chancery being a Court of Record here this Court is bound to take notice of the Customs used in it 3ly The taking of the Oath upon the Holy Evangelists and the taking of it upon the Holy Evangely is all one in effect Roll chief Iustice The most material Exception is whether a Master of the Chancery hath authority ex Officio to take an Oath and certainly antienly he had not and therefore you should have expressed that he had authority to take an Oath At another day Hales said that it doth well appear by the Record that the Master had authority to take the Oath of the person Oath and many presidents are as our Case is Roll chief Iustice The Presidents are that he hath authority to take an Oath prout per Recordum c. but it is not so expressed here Nicholas Iustice A Master of the Chancery of common right hath no power to take an Oath and therefore in this Case you should have pleaded precisely that he had authority otherwise it cannot be good Hales at another day answered another Exception taken that it did not appear that the Affidavit in which the false Oath was made was filed and then it was not upon Record and so could be no perjury and said it is all one whether the Affidavit be filed or not for the forswearing is before the filing the party who takes the oath may choose whether he will file it or no and therefore it is not necessary in the pleading to say as it appears by the Record Green on the same side It may be that it was filed and afterwards taken off from the file and then he cannot say as it appears by the Record and it would be mischievous if the party should not be punish d for the perjury because the Affidavit was not filed Serjeant Glyn on the other side said that the Presidents which are shewn to prove that a Master of the Chancery may take an Oath are that the party hath made an Affidavit as it appears by the Record and this is not so pleaded here and therefore the Presidents make for us An Endictment cannot be at the Common Law for perjury in an Affidavit if it be not filed Filing for the filing of it makes it a ground to frame the Endictment upon and so is it in other Courts for the filing of it gives power to the Court to make rules and orders upon it Wild on the same side said that it appears not here positively that the Affidavit was made in this cause alleged but only by way of argument which is not good Roll chief Iustice If it be in the same businesse it shall be intended to be between the same parties Perjury Perjury at the Common Law is intended to be in some Court and legal proceedings for a false oath made before us not touching the matter in question between the parties an endictment of perjury lies not Endictment and it appears not here that the Chancery took notice of this Affidavit for nothing was done upon it and the words as it appears by the Record are material words and do make up the businesse but they are here omitted If one make a false oath the party is punishable for it by an action upon the case in case it be not perjury for which he may be endicted for it Case False Oath A false oath is one thing and perjury is another thing for one is judicial and the other is extrajudicial And the Law inflicts greater punishment for a false oath made in a Court of justice than if it be made else-where because of the preservation of justice Ierman Iustice said that perjury takes its name from perverting of justice and therefore it is intended to be in a Court of justice The Court held the endictment ill and gave Iudgement against the Custodes Postea Trin. 1652. Banc. sup VPon a retorn of the Coroner of an enquest found before him that one had killed another man with a gun by misadventure Whether one might plead the general pardon Manslaughter The question was whether the party might plead the general pardon Thereupon Roll chief Iustice said if one kill another by doing an act which was needless for him to do it is man slaughter and so was it adjudged in Sir John Chichesters case lately who killed his man by misadventure in fenceing with him but if he kill another in doing an act which belongs to his calling Pard on it is not man slaughter therefore men must be wary not to do things which concern them not to do And therefore this Act is not within the generall pardon but he must purchase his pardon Williamson against Norwitch Trin. 1652. Banc. sup Hill 1651. rot 1668. IS was indebted to Williamson the Plaintiff by a contract and to Norwitch the Defendant upon an obligation and dyes intestate Demurrer to a plea in debt against an Executor descu cort demesn Norwitch intermedles with the goods Williamson brings an Action of debt against him as Executor of his own wrong Norwitch takes letters of administration of the Goods and Chatels of I. S. and then pleads that I. S. was indebted unto him by Obligation in the sum of 50 l. and that he had taken out letters of administration of the Goods and Chatels of I. S. and by virtue thereof doth retain Goods and Chatels of I. S. to the value of the said debt and besides those hath nulla bona c. To this plea the Plaintiff demurred and the question here was whether the Executor of his own wrong afterwards taking out letters of administration pendente lite may retain the goods of the intestate to satisfie his own debt due upon Bond or ought to satisfie the Plaintiffs debt due by contract It was urged that he could not plead this plea and these books were cited 5. rep Cowlters case and 21 H. 6. f. 8. and 38 Ed. 3. f. 17. and it was said that this case is stronger because the administration was taken pendente lite 5. rep Midletons case 2 E. 4.7 Latch on the other side held the plea good and agreed Cowlters case 5. rep and that the taking of letters of administration shall not destroy the Plaintiffs writ but here is a legall administrator and he might have reteyned the goods if he had been Debtor but in equal degree with the other but he is a Debtor of a higher nature than the other for his debt is by Bond and the others but by contract and the law requires his debt to be first satisfied 2 H. 4.21 Coment 545. If he have more goods than will satisfie himself he ought to make election what goods he will have and alter the property but where there are not
goods were and so the Declaration is incertain But Roll chief Iustice answered that the Declaration is good enough especially now there being a verdict in the case Pasch 1653. Banc. sup BY Roll chief Iustice Where a Certiorari may not be granted Affidavit Surmise A Certiorari to remove a Record ought not to be made but to a known Officer who is known to have the custody of Records and upon a surmise that he hath such a Record in his hand and therefore We will not upon an Affidavit grant a Certiorari but upon a surmise made upon the Roll. Pasch 1653. Banc. sup COunt Arundeland my Lord Chandois Bail denâ—ed for Maâ—slaughter to whom Count Arundel was second in a duel being formerly endicted at Surrey Assizes before Iustice Ask Iustice Warburton for killing Mr. Hen. Compton found guilty only of Manslaughter by the grand Inquest were brought to Bar to be arraigned for it and were not admitted to be bailed but were delivered over to the Marshal to be brought again at another day Nota. Pasch 1653. Banc. sup IOhn Weeks who had been endicted and convicted upon the Statute of King Iames made against stabbing Pardon allowed being formerly brought to this Bar did plead the general pardon which he had sued forth and prayed it might be allowed But then the Court said they knew not whether he were excepted out of the general pardon or not and ordered him to enter his averment upon the Roll that he is not excepted Surmise entred and then to appear again at another day at which time he was brought again and then he declared he had entred his Averment and produced his pardon and prayed it might be allowed which after a grave admonition made to him by Mr. Iustice Ierman exhorting him to repentance and amendment of life was done Harris and Tooker Pasch 1653. Banc. sup HArris brought an Action upon the Case against Tooker for turning of an old Water-course from his Mill to a Mill which the Defendant had lately erected and obtains a Verdict Arrest of Iudgement in an Action upon the Case The Defendant moves in Arrest of Iudgement 1. Because it appears not by the Declaration what estate the Plaintif hath in the Mill for he only says that he hath been seised of it 2ly It is not shewed from whence the water runs as it should be 3ly The erecting of the new Mill is not actionable but the diverting of the water to his damage and therefore ought not to be jumbled together Case Roll chief Iustice It is a damage to turn the water out of its antient course and it is not needfull to say that there is a new Mill erected But what say you to the first Exception viz. That you have not shewed what estate you have in the Mill. Wild answered they had shewed it Roll chief Iustice Be it so or not the Action lies for what estate soever he hath an Action of the Case will lie therefore take your Iudgement Pasch 1653. Banc. sup MEmorandum Arraignment for Manslaughter This day by Rule of Court my Lord Chandois and Count Arundel were again brought to the Bar and arraigned for Manslaughter Chandois as Principal and Arundel as accessary for killing Mr. Henry Compton in a duel They confessed the fact and craved their Clergy and Peerage by the Statute of 1 Ed. 6. But because the Court doubted whether the Statute was repealed or not Clergy and in regard the prisoners were not willing to lie longer in prison the Court refusing to bail them because the fact was notorious they waived their Peerage and prayed their Clergy as Commoners of England Whereupon the Ordinary was called who appeared and brought his Book which was a fair Latine Psalter The Court called for the Book and seeing it to be Latin commanded him to bring an English Book which he did But because the Officer was not provided who should have burned the Prisoners in the hand the Court would not then hear them read though the prisoners urged it But they were ordered to be still in Custody till another day and then to be brought again Trin. 1653. Banc. sup TWisden moved for a reference to Hern the Secondary and put the case to be this Motion for a reference to the Secondary A Scire facias issued forth against Executors and the Sherif returns nulla bona After upon a supposal by a testatum that the Executors had wasted the goods a new scire facias with a fieri facias in the same writ issued out according to the new way used and upon 2 nichils returned a judgement was given against them de bonis propriis and the parties were never summoned or had any notice of the proceedings Audita querela Reference Roll chief Iustice If you be condemned upon 2 nichils returned whereas you were never summoned you may help your selves by an Audita querela But it is not to be helped upon a reference Trin. 1653. Banc. sup A Man brought an Action of the case against one for causing him to be endicted for stealing of a Mare Arrest of Iudgement in an Action upon the Case and hath a verdict against the Defendant It was moved in Arrest of judgement that upon preferring of the Bill to the grand Iury they found an Ignoramus and so there is a repugnancy in the Declaration which sets forth that the Plaintif caused him to be endicted and yet says that an Ignoramus was found so that upon the matter it was found no Endictment Wild on the other side said the Declaration is well enough and there is no repugnancy for the words shall be taken according to the common construction Hales There is another Exception viz. That all the proceedings mentioned in the Declaration are expressed to be before the Iudges as Commissioners for the Gaol delivery and not as Commissioners of Oyer and Terminer Roll chief Iustice We will intend that the Endictment was before them as Iustices of Oyer and Terminer Endictment and in truth it is not material before what authority he was endicted and in this case the trouble the party is put unto by reason of this endictment is the cause of his bringing this Action and not his Tryal upon it Cure and therefore the authority is not material nor is it material whether the endictment be good or no and the words here are to be construed according to common intendment viz. That he was endicted though the endictment was not found but an Ignoramus and so by consequence in Law it is no Endictment upon which he could be tryed to come in danger of his life Hales moved that they might amend the Declaration and go to a new Tryal Roll chief Iustice It would be good to do so Amendment for it is doubtfull how we shall take the matter as it stands before us upon the Record Trin. 1653. Banc. sup THe Court was moved for an
Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
Hales on the other side Argued that the King shall have the trust and laid these two grounds 1. That there may be a trust raised upon the surrender of a Copyhold and 2ly that the surrender settles the trust in the Alien and cited 11 H. 4.26 and he said these things were considerable 1. Whether the King shall have any thing and what he shall have 2. Whether he shall have a use for an Alien at the Common law or a trust 3. Whether he shall have a trust raised out of a use And for the first he said that the trust was not a thing meerly in Action but an hereditament and partly in possession and cited Cooks Institutes 469. and said the reason why an Alien may not purchase lands is because that this Kingdom might not be impoverished thereby by transporting the revenues of the land into a forein Country and putting a part of it under the subjection of a forein Prince and the same reason comes to the case in question and therefore is not to be suffered and every Alien that purchaseth is said to purchase to the use of the King and so shall it be in this case and although a thing meerly in Action is not transferable to a Common person yet is it transferrable to the King but this case is stronger for the King for here is not a thing meerly in Action but mixed with an interest and it is no reason but that the law which was made to meet with the subtility of such Alien purchasors should take place here and it cannot be said that that law was made to give remedy to the King for that he had before and a Feoffment now made in trust for an Alien is all one with a use at the Common law and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited and he held Daccombe that there is no difference between a trust raised out of a Copyhold and other lands and if he hath an interest here in the profits the seisure is good though he have no interest in the land for the land may be seised by the profits 5 H. 5. fol. 9. Title But Rolle Iustice demanded of Hales how the King shall be intitled to the profits of the land where he is not intitled to the land it self and said that the Chancery cannot compell one to Execute a trust for an Alien Chancery and that a trust was invented only to avoid the Statute of uses and said that a trust is not a thing in Action Trust but may be an inheritance or a Chatell as the case falls out Adjourned postea White and Pynder Pasc 23 Car. Banc. reg Mich. 22 Car. rot 440. IN an Action of Trover and Conversion Demurrer upon an evidence there was a demurrer joyned upon the evidence and thereupon the Court directed the Iury to find damages for the Plaintiff if upon the argument of the demurrer the law should be adjudged for him and then the parties desired the Iury might be discharged and referred the matter to the Iudges to determine the law upon the evidence In this case Rolle Iustice took this difference to wit between pleading of a Record Record and giving a Record in evidence to a Iury. Plea If it be pleaded it must be sub pede sigilli or else the Iudges cannot judge of it But if it be given in evidence though it be not sub pede sigilli the Iury may find it Evidence if they have other good matter of inducement to prove it And the partyes in this case were advised by the Court for their own expedition to let there to be issued a venire facias de novo and to waive the demurrer upon the evidence because it was not good nor could bring the matter in question before them that they might determine it for one party saith there is a writ and the other saith there is not a writ which is bare matter of fact and not for us to determine but for a Iury and the demurrer ought to have been whether the writ be good or whether it be bad and should have admitted that there was a writ tyel quel and then had the whole matter come legally before us to wit whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not But the Court will advise Hamond and Kingsmill Pasc 23 Car. Banc. Reg. HAmond brings an Action upon the case against Kingsmill for these words Arrest of Iudgement in an Action of the Case for words spoken of him in relation as he is a Iustice of peace to wit Mr. Hamond did put in of his own head these words in an examination taken by him viz. I. S. did steal twenty sheep of such a mans and for speaking these other words of him Hamond was a debauched man and is not fit to be a Iustice of peace and hath a verdict against the defendant who moves in Arrest of Iudgement that neither the former nor the latter words were actionable for for the former words that he did of his own head put in words into the examination are words uncertain and dubious what is meant by them whether that he added any thing of his own invention to the examination which was not confessed by the examinant or that he only put the substance of the matter confessed into words of his own endicting and if he did no more that was justifiable and so it shall be taken here rather than in a worse and strained construction to ground an Action upon and for the second words to say that he was a debauched man and not worthy to be a Iustice of peace they cannot be scandalous for they are spoken of him in relation to what he was in time past before he was a Iustice of peace and not as he was at the time of the speaking and it is no scandall to say a man hath been debauched for it may be he is now otherwayes But for the first words it was answered by the Councel on the other side that they were actionable for they must be taken according to Common construction viz. that he had added not only words of his own invention to the examination but the matter it self expressed in those words which was not confessed by the examinant And as to the latter words it was answered they were also Actionable and a Case was cited where Iudgement was given against the Defendant for saying of one that he was a corrupt Iudge Rolle Iustice was of opinion Case that the first words were Actionable but not the second for words saith he ought to be taken according to usuall and Common construction though they are not to be strained for otherwise a man may be abused by subtility and shall have no remedy and Iudgement may be given
and that cannot be known how much it may be and consequently there is no award but both parties are at liberty to go to law as they were before An incertain award not good and so no end is made between them by the award according to the intent thereof and these books were cited against the award 20 Ed. 4. fol. 1. et 4.9 H. 7 fol. 14.8 Ed. 4. fol. 20. It was ruled by the Court to shew cause why Iudgement should not be against the Plaintiff per nil capiat per billam The King and Place Trin 23 Car. Banc. Reg. THe Case between the King and Place adjourned Error to reverse a Judgment upon an Endictment upon the Statute Scandalum Magnatum Pasc 23 Car. was again moved which was this Place was indicted before Finch and Crawley Iustices of Oyer and Terminer for these words spoken against the Queen mother of France viz. the Queen mother is the Whore of Babylon and is a Whore and hath had a Bastard and all the Noblemen that will not ioyn with me against her are Rogues and Rascalls To this endictment the Defendant pleaded and was found guilty by the Iury and Iudgement given against him Whereupon he brings his Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. against the body of the Endictment it self and that he ought not to be Endicted for the words because they are neither spoken against the Common law nor against any Statute law 2. Against the proceedings upon the Endictment which were against law being too speedy for he was Endicted before Iustices of Oyer and Terminer and tryed in one day whereas there ought to have been 15. days betwixt the preferring of the Endictment and the tryal 3. The Venire is against law for the Court did chuse try and swore the Iury which ought not to be 4. Part of the Iudgement is that the Defendant shall be bound to his good behaviour which cannot be upon such an Endictment as was before them 5. The Endictment doth not say that the words were spoken contra pacem 6. Part of the Iudgement is that he shall be set upon the Pillory and lose his cares which no law warrants but only to be set there to the view of the people Imprisonment with a paper on his head 7. The Iudgement is that he shall be imprisoned for a year without bail which ought not to be To this last exception the Court answered the party might be so committed But they said that the Iustices of Oyer and Terminer cannot try an Endictment the same day nor Iustices of peace at the same Sessions in which it was preferred Tryall and they cited one Barnabyes Case 13 Car. and Pridians Case 6 Car. 22 E. 4. et Plow 44. But they said Iustices of Eyr may try an Endictment the same day Roll Iustice said the Kings Bench is a Court of Eyr in the County where it sits Eyr and therefore they may try an endictment removed here out of the same County the same day but not if it be removed hither out of another County for in that case it is only a Court of Oyer and Terminer But Bacon denied it and said so was my Lord Cooks opinion and it was also said that Iustices of Oyer and Terminer cannot proceed upon an Endictment which is not taken before themselves but Iustcices of Gaol delivery may and the Court also held that the juratores electi tryati et jurati by the Court as it must necessarily be here understood Iury. was illegal for the Iury ought to be electi by the Sheriff out of the County and lastly the Court held that legally there ought to have been 15 dayes between the Endictment and the tryal and for these reasons ordered to give notice to the Kings Sollicitour or Serjeant to shew cause why the Iudgement should not be reversed Hill and Farmer Trin. 23 Car. Banc. Reg. Hill 17 Car. rot 674. AN Action of Debt was brought in the Common pleas upon an obligation Error in Debt upon an obligation and a Iudgement upon a demurrer was given for the Plaintiff the Plaintiff brings a Writ of error in this Court to reverse the Iudgement and Assignes for Error that the Obligation upon which the Action was brought and Iudgement was given is a void obligation by the Statute of quinto and sexto of Ed. 6. made against buying of Offices But Roll Iustice answered that the Iudgement in the Common pleas was given upon a mispleader there and therefore you should make that good first before you move new matter And there is another Error also in the pleading which was not touched upon in the Common pleas which is this first the plea is of the Office of the delivery within the Office of the Armory Declaration and after he referrs the plea to the Office of the Armory which is another Office and so she Declaration is double Another exception was that the word Armentarius was used for Armamentarius Monday following was given to shew cause why Iudgement should not be reversed The King and Marshall Trin. 23 Car. Banc. Reg. MArshall brings a Writ of Error to reverse a Iudgement given against him upon an Endictment of barratry Error upon an Endictment and takes these exceptions 1. That it doth not appear in the Endictment before what Commissioners the Endictment was taken upon which the Iudgement was given and so the Endictment is not good for the incertainty of it and consequently the Iudgement is erroneous that is given upon it for it ought to appear by the Endictment that it was taken before the Iustices of Assise or Iustices of Peace or of the Gaol-delivery 2. The Iudgement is quod solvat tantam denariorum summam and shall find sureties for the good behaviour and this is rather an award than a Iudgement To this exception Roll Iustice answered Iudgement if it be a good order it is a good Iudgement and the order is part of the Iudgement yet let the Kings Councell have notice and the Prosecutor shew cause why the Iudgement should not be reversed Trin. 23 Car. Banc. Reg. VPon a verdict given in an ejectione firmae it was moved in Arrest of Iudgement Arrest of Iudgement in an ejectione firmae and the exception was that the Plaintiff was ejected de uno Crofto which was said to be of an uncertain signification and because the Plaintiff conceived the Court doubted whether an ejectione firmae lay of a Croft he durst not defend it but moves for a special Iudgement for the rest of the land contained in the Declaration and prayed that he might release the damages as to the Croft Rolle Iustice doubted whether an ejectione firmae lyes de uno Crofto Ejectione firmae Formedon Assise and said that a Formedon lyes not of a Croft but that an Assise doth because it is put in view to the recognitors but a
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
there is in it a false recital of the suspension Recital for he was not removed by the Citizens and so the Writ is directed to parties who did not the wrong and so it is ill directed and it differs from the direction of the Writ in Sir James Bags case and it ought to have been directed to the Sheriffs or Ministers who have authority to restore him as they did remove him for the party that hath done no wrong ought not to be punished or molested and for the ill direction of the Writ could not Warren the common-Councel-man of Coventry he restored and the Corporation of London is responsable for all particular Misdemeanours done within any Courts of Iustice within the City or other general Misdemeanours there committed Misdemeannours Maynard on the other side argued that the case was mistaken as it is stated in the Retorn for it supposeth that the party is removed at pleasure and yet supposeth also that there is a cause to remove him to wit his refusing to go out and expresseth not that he did not go out nor that he was commanded to go out but that he was requested And whereas it is more than to advise for he hath a privilege for his own good and the good of the City 3ly The Writ is well directed and cannot be otherwise for the party to have remedy and all the Presidents are as this is Presidents and Alderman Harris his case is the same in point with this where it was by three Iudges resolved that he should be restored to his Aldermans place because it was a place of Honour as well as of Burthen Roll Justice said 1. That the Writ was well directed 2ly That the custom was ill recited 3ly If it were well recited yet it is a void custom 4ly The Retorn is not good for the incertainties of it viz. in the causes shewed why the party was removed and therefore that he ought to be restored to his place Bacon Justice to the same intent and said that wheresoever a Commissioner or other person hath power given to do a thing at his discretion it is to be understood of sound discretion and according to Law Discretion Iurisdiction and that this Court hath power to redress things otherwise done by them The rule was that the party be restored if better matter be not shewn Tuesday following Trin. 23 Car. Banc. Reg. IN an Action of Trespass for digging in his Ground Arrest of Iudgement in Trespass and carrying away 200 load of soyl It was moved in arrest of Iudgement that it should have been of soyl inde provenient and that an intendment cannot make it good Roll Iustice said it seems a good Exception for as it is it is too generalite laid Vincent and Fursy Trin. 23 Car. Banc. Reg. Hil. 22 Car. Rot. Q. VIncent brought an Action of Trespass against Fursy for breaking open 2 Chests and taking away certain Cloaths and 3 l. in mony Arrest of Iudgement in Trespass and had a Verdict for him The Defendant moves in Arrest of Iudgement and takes these exceptions 1. That the Declaration is too general for it sets not forth what the cloths were which were taken away and so the value of them cannot be known as it ought to be that Damages may be rightly given 2. In this one Declaration there is an Action of Trespasse joyned with an Action upon the Case viz. the Trespasse for breaking open the Chests and the Action of the Case for taking away the cloathes and mony which ought not to be for two several Actions ought not to be laid in one Declaration Wadham Windham of Councell with the Plaintiff said it was well enough and could not be otherwise and the thing is certainly enough set forth and shall be interpreted reddendo singula singulis viz. the spoliavit in the Declaration shall have reference to the cloaths and the cepit to the mony Trover and Conversion Rolle Iustice said that an Action of Trover and Conversion for divers sorts of linnen had been adjudged good and 29 E. 3. An Action of Trespasse lyes for beating of his servant and in Cletheroes case an Action of Trespasse was held good for rescuing a prisoner from him whom he had Arrested Trespasse and the Cook of Grayes Inn brought an Action of Trespasse for taking away his wife per quod consortium amisit and it was held to be well brought but if the cloaths in the case at the bar had not been in the chest the Action would not have lain and he took another exception namely that Declaration wss for the breaking of 2 chests Incertainty and so it appears not where the cloaths were when they were taken whether in one oâ— in â—oth of them The rule was to stay Iudgement till they had seen the Reâ—ord Capell and Allen. Trin. 23 Car. Banc. Reg. Hill 22 Car. rot 639. CApell brought an Action Debt upon an Assumpsit to stand to an award the Defendant pleaded Nal Arbitrement Demurrer upon an award the Plaintiff replyes and sets forth the Arbitrement and the breach the Defendant demurs and for cause shews that the award was not good because it was made but of one part Award for it was that one of the parties should do such things expressed and that the other party should pay for the making the Bonds of Submission which cannot be awarded and so nothing is awarded for him to do and the Arbitrators cannot award this because it is not within the submission Submission Rolle Iustice held this a good exception and said the Charge for making the writings is not within the Submission for the bonds were made before the Submission and it was held 13 Jac. that the words super praemissis in the award will not help an award made but of one part Trin. 23 Car. Banc. Reg. AN Action of Debt was brought upon a Bond Demurrer to a Declaration in Debt upon a bond to perform Covenants of an Indenture Breach Interpretations to perform the Covenants of an Indenture of a Demise for years The Plaintiff declares that he made the Lease to the Defendant the 28. day of May and that afterwards scilicet the 27 of the same Month of May the Defendant broke the Covenant To this Declaration the Defendant did demurr because it appears that the breach is set forth to be before the lease began which cold not be and so there is no cause of Action But to this Bacon Iustice said where the postea and the scilicet are repugnant in a deed as here they are the postea shall be good to signifie the time of the Covenant broken and the scilicet shall be void Therefore shew cause why the Plaintiff should not have Iudgement Nota. Trin. 23 Car Banc. Reg. A Prohibition was prayed to the Corporation of Lincoln upon a suggestion made and sworn in this Court For a prohibition to the corporation of
Lincoln Admission Iurisdiction Prohibition Proceedings that the cause of Action if any were arose in the body of the County of Lincoln and not within the jurisdiction of the City of Lincoln Hales on the other side said they had admitted the jurisdiction of the Court in that they had not pleaded to it But Roll Iustice said inferiour Courts are limitted in their jurisdictions and ought to be kept in order by prohibitions if they exceed and if they proceed in matters not within their jurisdiction their proceedings are void Adjourned to the next Term. Trin. 23 Car. Banc. Reg. THe Court was moved for a Prohibition to an inferior Court For a prohibition to an inferior Court Admission but on the contrary part it was said that they moved too late for they had admitted the jurisdiction of the Court by pleading and cited 9 H. 7.12 and Fitz. jurisdict 19. Bacon Iustice said it is here in a Court of Common Law and not in the spiritual Court or Admiralty and therefore a Prohibition may be here granted notwithstanding the pleading there Prohibition but had it been the spiritual Court or the Admiralty it had been otherwise But Rolle Iustice said it was all one in the spiritual Court or Admiralty as it is in this case if they exceed their jurisdiction Iurisdiction Yet it is mischeivous to grant a prohibition in this case for thereby many Iudgements will be stopped Therefore the Court would advise to the next Term but stayed nothing Trin. 23 Car. Banc Reg. THe Court was moved that the undersheriff might return a Iury because the Sheriff For the undersheriff to return a Iury. Return Surm se Petigree Attorney and Coroner were of kinn to the Plaintiff the Court thereupon demanded whether they had brought in the surmise and proved the petigree to which they answered They had thereupon they were bid to name some Atturneys of the Country which was done and thereupon a rule made that they should return the Iury. Nota. Trin. 23. Car. Banc Reg. THe Court was moved for a rule to stay proceedings in the Court at Maidston in Kent To stay proceedings gâ—â—â— the Court at 〈…〉 because a supersedeas could not be granted for that nothing erroneous issued out of this Court But the Court answered that a supersedeas might well be granted and so said Hodsden the Secondary although nothing erroneous be issuing out of this Court and Bacon Iustice said that the Writs of the Court are as good and of as much force as the rules of Court Writs Rules and therefore we will make no rule to stay their proceedings but you shall have a supersedeas if you will Person and Dawson Mich. 23 Car. Banc. Reg. AN Action of the Case was brought by Person against Dawson for these words Arrest of Iudgment in an Act on for words your Son innuendo your Son William stole a horse and sold him for ten pounds The Plaintiff hath a Verdict the Defendant moved in Arrest of Iudgement that the words are not actionable because uncertain Case VVords and the innuendo cannot help them and the Iudgement was stayed till the other should move It was afterwrads moved again and the Iudgement stayed and this Term Iudgement given for the plaintiff Mich. 23. Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of usury To quash an Endictment upon the Statute of usury Pursuance The exception taken was that it is not said corrupte agreavit nec accepit and so the Statute is not pursued Roll Iustice said that it is the corrupt receiving and the corrupt contract upon which Endictments are framed upon the old Statute viz. 3. Jac. c. but if the Endictment be framed upon the Statute of 21 Jac. there it ought to be upon the corrupt contract and because this Endictment is framed upon the Statute of 21 Jac. and mentions not the corrupt contract it is not good and therefore let it be quashed Yates against Lyndon Mich. 23 Car. Banc. Reg. MAry Yates brought an Action upon the Case for speaking these words of her Mary Yates is a Sorcerer and a Witch and a white Witch Arrest of judgment in an Act on for words Case Statute Witchcraft she can witch and unwitch and hath a Verdict The Defendant moved in Arrest of Iudgement that the words are not actionable because the Plaintiff is not by the speaking of them brought within the Statute of 21. Jac. against Witch-craft But Roll Iustice doubted whether the word Sorcerer did not bring the Plaintiff within the Statute Yet Iudgement was stayed till the Plaintiff should move Hill the same year it was moved again and the Court adjudged Nil capiat per billam for they held the words not actionable Turner and his VVife Mich. 3 Car. Banc. Reg. TUrner and his Wife brought an Action upon the Case for these words Arrest of Iudgement in an Action for words spoken of the Wife she is a Witch and I will take my oath of it The Plaintiffs had a Verdict The Defendant moves in Arrest of Iudgement that the words were not actionable for to say one is a Witch and to say no more is not actionable and the last words I will take my oath of it do not enlarge the former words VVords The Court arrested Iudgement till the Plaintiff should move Paradine and Jane Mich. 23 Car. Banc. Reg. Hill 22 Car. rot 1178. PAradine brought an Action of Debt for rent due for lands Argument in debt for rent upon a lease for yeares let for years unto Iane the Defendant and declares particularly how much rent was due and for what time The Defendant pleads a special Plea to this effect as to part of the rent for which the Action is brought he confesseth the Action As to the rest he pleads that Prince Rupert an Alien and an Enemy of the King invaded the land with an Army and with divers armed men did enter upon him and did drive away his Cattell and expelled him from the lands let unto him by the Plaintiff and kept him out that he could not enjoy the lands for such a time and demands judgement if for the rent incurre during that time the Plaintiff ought to have his Action Demurrer To this Plea the Plaintiff demurrs and for cause saith that it is neither good in matter nor form The 1. question was whether a Lessee for years ousted by an Army or Aliens can plead it in Barr Plea Debt contract VVâ—st in an Action of Debt brought for rent due upon the Lease And to this it was said that this is an Action of Debt and lyes meerly upon the contract between the partyes and so this collaterall matter pleaded is nothing to the purpose but had it been an Action of wast if the wast had been done by Pr. Rupert and his Soldiers it may be it might have been pleaded to bar the Plaintiff 19.
That the law doth take notice of an Arch-deacon being a publique Ordinary and therefore it is not needfull to expresse that the letters were granted per Archidiaconum of such a place Ordinarium illius loci or cui administratio pertinuit but otherwise it were if they were granted within a peculiar jurisdiction Therefore he ordered to shew better matter or elce Iudgement should be given for the Plaintiff Eeles and Lambert Mich. 23 Car. Benc Reg. vid. antea THe Case between Eeles and Lambert was again moved Argument up on a speciall verdict which upon a speciall verdict found was this Sir Molton Lambert makes a lease of certain lands to Eeles for 21 years by deed and Covenants for himself his Executors Administrators and Assigns that the lessee shall peaceably and quietly enjoy the lands let during all the Term the Lessor makes his Will and thereby makes Lambert the Defendant his Executor and dyes and by the Will divers goods in specie are devised to sundry persons Lambert the Executor delivers the goods bequeathed to the Legatees Eeles is ousted of the lands by I. S. and thereupon brings an Action of Covenant against Lambert the Executor who pleads fully administred The question was whether the paying of these legacies by the Executor were a devastavit Devastavit and so the Executor to be charged de bonis propriis to satisfie the Covenant broken or no Green of Council with the Plaintiff argues that it was a devastavit notwithstanding that the devise was of goods in specie and that the Executor had only delivered them because that the Legatees had no property in the goods bequeathed them Property before the Executor had delivered them no more than if they had never been devised and cited 2 H. 6. f. 16. and Cooks Lit. 111. and he said the finding of the Covenant broken was nothing to the purpose and he said it was a Devastavit because it shall be intended that the Executor might know of the Covenant made by the Testator which he was bound also to keep or else to satisfie for the breach of it Covenant and the contingency whether the Covenant would be broken or no makes no difference in the Case for if it should it would prove mischievous in destruction of Covenants which are to be accompted of as Debts Doct. Stud. lib. 2. C. 10. Dyer f. 324. Hob. â— 363 397. But it may be objected that if this should be a Devastavit then Legacies could not be paid which would be dangerous to Executors by reason of being lyable to sutes for them Executors 21 E. 4 f. 21. Brook Tit. Proces S. 10. To tâ—is I answer It may be dangerous yet it is not to the purpose for an Executor should consider of such dangers when he takes upon him an Executorship and take notice of them and he is not compellable to pay Legacies and the Law will not protect him if he pay them against Law Hob. 246. and if the Court Christian endeavour to compel him he may have a Prohibition Prohibition 3ly The Executor peradventure might conceive that there would be Assets afterwards and in that consideration did pay the Legacies and if the 5 Rep. Green and Harisons case and 15 Iac. Robsons case be objected I answer this Case differs from them for here the Question is betwéen Legacies and Debts and there between one Debt and another to wit betwéen a Debt of a higher nature and a Debt of a lower nature Hales for the Defendant argued that it was no Devastavit 1. He agrées Property that the Legatees have no property in the Goods by the devise 2ly If the Covenant had béen broken when the Legacies were paid it would have been a Devastavit 3ly He held that the matter is as well found in the special verdict as it might have béen pleaded and not put at all to the Iury to find The Question here is whether the administration of the Goods before the Covenant broken be good after it is broken and there is good matter before the Court found in the special verdict though it might have been found better The first Argument I will draw from the nature of that upon which the Action is founded namely the Covenant The Action depends partly upon the Déed of Covenant partly upon the breach of it and here is no ground of Action at the time when the administration of the Goods was made and Harisons case cannot be avoided for a Statute is a present duty Duty Star Obligation and ought to be paid before an Obligation Robsons case 14. 15 Iac. And it is as agréeable to Law to pay a Legacy as a Debt upon a Covenant and the mischief to the Lessee in our case is not so material as the mischief may be on the Executors part it is not materially objected that he might take security Security for he cannot compel it For the Objection that our Law takes notice of a Legacy I answer that the Law takes notice of a Legacy as to give an interest in it to the Legatee Interest although he may not take it without the Executors consent 2ly It takes notice of it as remediable by the Law of the Kingdom though not by the Common-law and therefore consider the Statute 21 H. 8. of Administrations Common law Civil law and the common-Common-law is Iudge of the Statute concerning Administration and not the spiritual-Spiritual-law Hill 17 Iac. Hinson Buttons Case The common-Common-law gives not a remedy fora Legacy Legacy but the spiritual-Spiritual-Court is supported by the common-Common-law to do it and by the antient common-Common-law there was remedy to recover a Legacy 2 Rich. 3. f. 14. Glanv lib 7. C. 6.7 and the power of the Ecclesiastical Court is derived from the Common-law and the Common-law will take notice of a compulsary way in the Ecclesiastical-Court to pay a Legacy And the payment in our case is executed and now the Law takes notice of it because the Defendant was compellable to it Pâ—omise If an Executor promise to pay a Legacy an Action upon the case will lye against him if he do not pay it Roll Iustice the Testator may defeat all Covenants by this means and Greens reason is not answered which is the great doubt in the case It was Necton Sharps case 38 Eliz. that Legacies ought to be paid conditionally viz. to be restored if the Covenant should be broken When you argue again argue to this point Bacon Iustice cited a Case 32 Eliz. in the Exchequer against the opinion of Roll and said if the Legacies should not be paid it might be a loss to the Common-wealth for it may be the Goods will perish with kéeping them and the keeping of them may be a charge to the Executor and no body shall have any benefit of them for they may cost more to keep than they are worth and a Devastavit lies not against an Executor of
This Statute of 1 Ed. 6. was made to supply something omitted in the Statute of 37 H. 8. and it is plain that it is within the words and we have no warrant to interpret it otherwise since it doth not appear that it is excepted also it is not found to be a Parish Church but that they claim it to be so and if it were it would not help 2ly It may be presentative and yet a free Chapel according to the foundation and endowment of it and a free Chapel may become a Church by presentation of the Patron but it appears not to be so to us The proviso of the Statute shews that it was not the intent of the Statute to exempt all free Chapels but those only which are named and no more And the intent of the Statute was that the King shall have it as a lay thing and he was not compelled to present and here the Patron hath taken the profits and there are no inhabitants within the Parish for the seignory compriseth all the parish and if the King presents by lapse where he ought to do it pleno jure the presentation is not good For these reasons The Iudgement was given for the Defendant if better matter be not shewn before the end of the Term. Fulham Hill 23 Car. Banc. Reg. FUlham had a Iudgement in this Court against 3 Defendants For Execiuion notwithstanding a writ of Error brought in parliament two of the Defendants bring a writ of Error in Parliament Fulham that had the judgment moves the Court he may have Execution upon his judgment notwithstanding the Writ of Error brought in Parliament because the Record is not well removed for the Writ of Error is not good for the Iudgement is against thrée and the Writ of Error mentions but two of them Roll Iustice I doubt you cannot have execution but the Writ of Error must be abated in Parliament Abatement Execution and then you may come here and move for execution for now it is not safe to grant it Move it in Parliament to have it abated or move here again at your own adventure The King and Holland Hill 23 Car. Banc. Reg. IN this Case between the King and Holland For an Amoveas manum to the Chancery Amoveas manum after divers arguments at the Bar and the opinion of the Court delivered The Court was moved for an Amoveas manum to the Chancery that the party may have his Land out of the Kings hand The Court answered The Iudgement is to be given here if there be cause for the King if not against him and you ought not to go to the Chancery And all that we can say is that the King shall not have Iudgement Iudgement Hill 23 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry upon these Exceptions For quashing an Endictment 1. That it did not say that the forcible Entry was contra Coronam dignitatem but this the Court over-ruled A second exception was That it doth not shew that the party was felted at the time untill the Defendant entred by force upon him 3ly The Endictment concludes contra formam Statuti and it ought to be statutorum for the Statute of 8 H. 6. upon which this Endictment is framed relates to other Statutes To this the Court said if the Endictment be so it is ill 4ly The Endictment saith Endictment he entred peaceably and detained with force and such an Endictment hath relation to two Statutes To this it was answered that the Statute of 8 H. 6. is sufficient to found the Endictment without relation to other Statutes for this clause upon which this Endictment is framed is a new Law and hath no relation to precedent Statutes for it is here only for a forcible deteyner Roll Justice doubted of this for it is said that the Statute of 8 H. 6. shall be added to the new Statute Bacon Iustice differed in opinion and said the Statute of 8 H. 6. was not made to piece up the other Statute but is a new Law as to this clause The Court will advise further Chambers against VVollaston Hill 23 Car. Banc. Reg. THis Case was again moved and argued by Ward of Councel with the Plaintiff Argument upon a special Plea The Action was an Action of Assault and Battery and false imprisonment The Defendant pleased a special Iustification by vertue of the Custom of the City To which Plea the Plaintiff demurred six points were spoken to by the Plaintiffs Councel in his Argument 1. Custome He said the procéedings against Chambers were neither agreeable to the Common law nor to Magna Charta and therefore illegal and not warrantable notwithstanding the Custome pleaded to back them 2ly The Custome it self is not well pursued Bracton 55.5 Rep. 64. The King cannot grant power to a Court to commit against the common-Common-law or Statute-law Magna Charta 54.42 Ass Pl. 5. and though one submit himself to be committed Submission for a thing for which he is not committable by Law this submission is void 3ly The Custom pleaded is against Magna Charra and divers other Statutes Stat. 9 H. 6. cap. 5. 8 E. 3. Cooks Magn. Chart. f. 16. Bracton 334 335.43 E. 3. f. 32. Pleadings and it appears not the pleadings were in Latin as they ought to be 36 E. 3. neither was the Confession legal nor entred upon Record 3ly Iudgement The Iudgement varies from all other Iudgements in Law for the Commitment was that he should stand committed untill he would promise that he will disturb no more And â—ly untill the Court should take further order and this is against Law 8 Rep. f. 59.2 Instit 52. 5ly The Statute of Rich. 3d. confirms not the Custom for if it was before Magna Charta it is taken away by that Statute for it is not excepted in it Magna Charta cap. 19. 29. Miror of Iustice cap. 5. Long Quint. 40 41. 6ly The Custom is not well pursued in the Return for the Oath extends to be obedient to the Bayliff Retorn c. for the time being but the Return is not so but it said that he be obedient to good Laws and this is not in the Oath And the Retorn is against their Custom and Iudgement for the Commitment and so he praid Iudgement for the Plaintiff Roll Iustice said That the Iudgement and the Retorn are contrary tor the Iudgement was that he shall be committed because he would not promise not to disturb and the Retorn is that he promise that he will not disturb Cause was to be shewn why the Plaintiff should not have Iudgement The King and Apsley Hill 23 Car. Banc. Rep. APsley removed certain orders made against him by the Commissioners of Sewers for Westminster by a Certiorari into this Court. To quash orders of Commissioners of Sewers And upon the Retorn these exceptions were taken 1. That it doth
is scriptum and for the time the Defendant ought to have alleged that he bad not convenient time Tender if the truth were so but here doth appear convenient time and it is not necessary for the Plaintiff to tender the Obligation but the Defendant ought to do it at his own perill and to pay the mony in convenient time after the mariage and the other is not bound to demand it Intendment nor to be at the charge to make the Obligation Bacon Iustice to the same effect and said the words ought to be intended of a writing obligatory according to common intendment Time and the meaning of the parties although it be not so expressed and it cannot be meant of a promise by parol for there are no presidents in Law for verbal securities but only for securities in writing and the word in debita juris forma implies so much otherwise here would be only one promise to make good another promise Pasc 9 Iac. rot 361. Banc. Reg. 21 Iac. upon a Writ of Error in the Exchequer-Chamber the former Iudgement was affirmed and the breach here assigned meets with the Assumpsit for it is that he did not become bound per c. and so the breach is well assigned 2ly Here appears in the Declaration to be two Months for the performing the promise which is a convenient time and there doth not appear any hinderance and the Defendant was bound to do it without request and there is no necessity for the Plaintiff to make an election of the time when he will have it done The Court bid the Plaintiff take his Iudgement except better matter were shewed on Monday following Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry To quesh an Endictment The Exception was that the forcible entry is said is to be made in messuagium sive tenementum which is incertain But Roll Chief Iustice doubted whether the exception was good or not because it was messuagium sive tenementum and the word Messuage may be good though Tenemen tum be not But it was quashed upon another exception The King against VVood. Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment taken at a Sessions against one Wood for getting the horse of another man into his possession To quash an Endictment by using another mans name and a false token The exceptions taken against it were 1. The Endictment doth not say that it was contra Statutum But to this the Court answered that it was an offence at the Comon Law and the Endictment lay at the Common Law and therefore it need not to be expressed to be contra formam Statuti 2ly It doth not shew what the false token was nor in whose name it was used But Roll chief Iustice took another exception viz. that the Endictment was that the Defendant did the fact nuper and that is so general a word that no answer can be given to it And for that it was quashed Twigg against Roberts Mich. 24 Car. Banc. Reg. Hil. 22 Car. rot 956. AN Action of Debt was brought against an Executor in Bristow upon a Custom of concessit solvere by him to pay a Debt due by the Testator upon a simple contract and a verdict and a Iudgement for the Plaintiff Error to reverse a Iudgment in Debt against an Executor The Defendant brought a Writ of Error in this Court to reverse the Iudgment and the Error assigned was that the custom of bringing an Action of Debt upon a concessit solvere is not a good custom Custom Wager of Law because it hindrers the party to wage his Law as by the Law he may do Walker of Councel with the Defendant in the Writ of Error argued that it was a good custom because the party is not thereby hindred of a tryal and there are customs in London which are against the Common Law as for example for the Recorder to give Iudgement upon an exigent The Court desired to see the book and to have presidents brought them And said This Custom had been allowed against the party that made the contract but the doubt is whether it be good against an Executor for a concessit solvere is without any consideration And Roll chief Iustice said that this custom doth break three rules of the Law Barker against Denham Mich. 24 Car. Banc. Reg. Trin. 23 Car. rot 1280. BArker brought an ejectione firmae against Denham Special verdict in an Ejectione firmae and upon not guilty pleaded an issue was joyned and the reupon a special verdict was found that by the Custom of the manour whereof the Lands in question were held a Copyholder might surrender his Copyhold out of Court into the hands of two customary Tenants to the use of another and at the next Court the party to whose use the Copyhold was so surrendred used to be admitted and That there was such a surrender made here but that the party to whose use the Copyhold was so surrendred dyed before the next Court and so was not admitted The question was whether he dying before his admittance shall be said to be a Copyholder by the Custom of the manour or no. Descent Hales Argued that he is not a Copyholder within the Custom and then if this Custom hinder not the Lands shall descend according to the rules of the Common Law for so is it of all Copyhold Lands if a speciall custom hinder not and here 1. the words of the Custom are to be considered and 2ly Custom how they are to be expounded and for this he cited 49 E. 3. f. 19.22 E. 3.2 E. 4. f. 24. A Custom shall be construed according to the Common apprehension of the lay gens and a Custom shall be interpreted according to the most effectual operation of the Law 3 H. 7.5 Doct. and Stud. 48.21 H. 7. f. 33.44 Ass f. 10.4 H 8. Dyer 28. A denyal actual by a Copyholder to pay his rent is a forfeiture Forfeiture not an implicative denyal lib. intrat f. 238. And by a surrender of a Copyhold before admittance the surrendree hath no real possession and the heir of a Copyholder before his admittance holds by the Copy of his Ancestor and so he hath title but the surrenderee can have no title before admittance Title and he cited Rawlins and Iones his case and Spurlins case A surrender before admittance is but a a consent of the party to part with the estate but passeth it not and after administration it should have no relation to the surrender Twisden for the Defendant Relation 1. He agreed that a Copyholder before admittance is not perfect in his Estate but yet the admittance shall relate to the surrender and both shall be accounted one entire Act contrary to other learnings 2ly The Son is in by descent and the descent must be ruled by the custom and he is now
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
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
alias Heriots with the appurtenances whereof the said Close called Pipers Down was parcell which tenement and Close were parcell of the said manour and was then and had been time out of mind demised and demiseable in Fee by Copy of Court roll of the said manour did build a new messuage upon the said Tenement and did afterwards by his Letters patents under the great seal grant the office of Keeper and keeping of the said messuage to Iohn Gate for term of his life with all the Lands Tenements c. thereto belonging or adjacent and did also by the same Letters patents give and grant unto the said Iohn Gate amongst other things the Lands belonging to the said new built messuage whereof the said Close called Pipers down was part for Term of his life for the exercising of the said office with an averment in the plea that before that time there was no such office of the keeping of the said house and that the King did not know nor was at the time of the grant enformed that the said Tenement and Lands whereof the said Close was parcell were Copyhold of the said manour After the grant made to Iohn Gate as aforesaid H. the 8. dyed seised of the said manour of the reversion of the said Messuage and Close after the death of Iohn Gate and thereby Ed. the 6. became sofâ—ed of them in like manner and from Ed. the 6. they came to Quéen Mary Then Iohn Gate dyes and after his death Quéen Mary enters upon the said manour and Messuage whereof the said Close was a parcell and afterwards by her Letters Patents under her broad Seal doth grant the Manour and Messuage and Premises unto Susan Tong and her heirs for ever From Susan Tong by mean conveyance the said Manour Messuage and Premises came to Humphry White and his heirs and afterterwards Humphrey White being seized thereof in Fée did by his indenture of lease demise the said Manour Messuage and Premises to Leigh for 60. years to begin from Mich. before the making of the indenture afterward Humphrey White grants away the reversion of the said Manour Messuage Premises to Sir John Branch afterwards Sir Iohn Branch grants this reversion to Vdall Vdall grants it to Bathurst and Bathurst grants it to Thomas Boothby the Ancestor of Thomas Boothby whose Baily doth here make the avowry Afterwards Robert Leigh who had the lease of the said Manour and Premises as aforesaid for 60 years deviseth the residue of this lease then unexpired by his last Will and Testament unto Robert Leigh his Son and dyes Robert Lee the son being possessed of the residue or remainder of this Term for 60. years by virtue of the said Will did at his court held for the said Manour of Chingford grant the said Messuage with the appurtenances and Lands thereunto belonging whereof the said Close was parcell unto Edmund Lee his brother to hold of the same Manour in Fée at the will of the Lord by Copy of Court Roll of that Manour Edmund Lee was thereupon admitted accordingly Afterwards the said lease for 60. years made by Humphrey White unto Robert Leigh the Father expires Afterwards Thomas Boothby who had the reversion of the said Manour and Premises as abovesaid entred as in his reversion upon the said Manour and Premises and dyed seised thereof leaving issue Thomas Boothby his Son Thomas Boothby the Son enters into the said Manour and Premises and claims the said Messuage with the apurtenances with the lands thereunto belonging whereof the Close called Pipers down was parcell and was granted by Robert Leigh unto Edmund Leigh by Copy of Court Roll as aforesaid as parcell of the demaines of the said Manour of Chingford and doth deny it to be Copyhold and to the intent to try the title thereof did by the Avowant his Bailiff distrein the Cattel in the said Close as damage feasant in his soil and Freehold This Case was argued first by Arthur Harris of Lincolnes Inn who argued for the Plaintiff viz. he that brought the replevin and in his argument he made the generall question in the Case to be whether the close called Pipers Down in which the distress was taken were at the time of the distress taken demiseable by Copy of Court Roll or whether the Custom was not destroyed and he held it was demiseable and that the custom was not destroyed and hereupon he made four questions 1. Whether the grant of the new house to Sr. Iohn Gate per nomen officii of keeper thereof were a good grant 2ly Whether the King not being enformed at the time of the grant that the house was Copyhold tenure he was not deceived in his grant 3ly Whether by this grant the Custom was not destroyed 4ly Whether the Kings Patentee hath not the same privilege to grant this house c. again by Copy of Court Roll after the death of Sr. Iohn Gate And as to the 1. of these 4. questions he cited 8 E. 4. by Chock and 21 E. 4.79 and Mich 5 Car. Banc. Reg. Monsons case and Pasc 14 Car. Banc. Reg. Messand and Butterfields Case and 5 E. 4. f. 8. and Dyer 269. Savages Case To the 2d question he held that the King was not here enformed of his right and consequently he was deceived and therefore ought not to be prejudiced by his grant which he should be if he had not liberty to demise this house again by Copy of Court Roll after the death of Sr. Iohn Gate and he said that there are two rights in the King 1. At the Common Law and 2ly a customary right and of this Customary right or his jus concedendi he was not enformed and he cited these books 3 H. 7.10 rep 49.8 H. 625 Br. Ayd 45 4. H. 6.1 2 R. 3. Hunsons Case and he said that the book of 5 H. 7. f. 1. which is objected is not to purpose for the protestation is not well taken 19 H. 6. a protestation is to supply a matter which is not so here 41 E. 3. Fitzh protest 9.22 H. 6.37 Br. protestation 6. Plowd Coment Gresbrooks and Foxes Case and 20 Eliz. Burrell and Holcrofts Case 2ly The King is not enformed here in his grant in matter in Law as he ought to be and therefore his grant shall not turn to his prejudice 1 rep 52.18 H. 8. Lovels Case Pasc 2 Eliz. Sr. Thomas Mores Case 1. rep â—3 16 Jac. Needlers case and whereas it is said that the words ex certa scientia in the patent do declare that the King was enformed I answer that those words do intend no more but that the King was enformed of matters of fact and not of matters in Law and the Kings grant shall only be taken secundum intentionem and whereas it may be objected that by the granting of the Estate for life unto Sr. Iohn Gate the custom is destroyed I answer that this being in the Case of the King it is an extraordinary Case and not
determined and Hanbury and Cookrells case is not adjudged but if it be it is on my side and Mich. 37 38. C. B. rot 1149. It was adjudged upon solemn argument at the Bar and on the Bench contrary to the Iudgement in Pell and Browns case if lands be devised to one and his Heirs and if he dye without issue that the land shall be to another and his Heirs this is no Estate tail for it cannot stand with the rules of Law to devise â—uth an Estate for it is but a possibility and if it should be more it must be a Fee upon a Fee and so a perpetuity and it cannot be known within what bounds it shall end either in case of years or life or other contingencies and the comparison of Lampets case is not like to this case for that was or a Term but this is of a freehold and a contingent devise of a freehold is not good since the Statute of 32 H. 8. and Brook tit devise 2 Dyer 28 H. 8. f. 3â— is not an opinion against this And though there could be such a devise of other lands yet Copyhold lands cannot be so devised as the case is here for there cannot be so much as a possibility of reverter for there is no custom to warrant it Hill 5. Car. King and Leyden in this Court and Dyer 264. and though there might be a reverter yet he cannot devise it by will and if he could yet here the conbeyance is made up by surrender admittance and devise and the party is here in by the surrender and not by the devise and so is a Copyholder in by Act executed and not upon the contingency and the will is but to direct and though all this be otherwise yet the Plaintiff cannot have Iudgement for it appears not that the surrender is presented at any Court at all and here is nothing but a recitall found Ierman Iustice said by the Common Law there ought to be a presentment at the next Court Roll chief Iustice and Nicholas Iustice There is no certain time for the presentment but it is according to the Custom of the Manor so that it be within the life of the Tenant Roll chief Iustice said it is an inconvenience to devise such a contingent Estate Nicholas doubted for he said it would shake many wills if it might not be and so said Hales The Court would advise Hales confessed the verdict was imperfect but prayed it might be amended But Latch answered it is good enough for us the Defendants for we have primer possession The Court answered it would be good to have it amended and not to have a venire de novo Venire for that will be chargeable but if the verdict be imperfect to bring the matter in Law into question we can grant a new venire although it hath been heretofore doubted Therefore be advised so that it may be argued Antea Heal against Green Trin. 1651. Banc. sup Hill 1649. rot 370. THe case between Heal and Green upon a special verdict formerly argued by Latch was again spoken to and argued by Twisden Argument upon a special verdict upon construction of words of a Will and he held that the Feme had power by the Will to make the lease notwithstanding that she hath but an Estate for life and cited 11 Car. B. R. Hill rot 810. Iob and Whites case and 21 Iac. Danyel and Vgnel and he said that the remainder limited to the daughter doth not hurt for it may very well stand with the will and the intent of the Testator appears upon the whole to be to give such a power to his wife to make this lease and cited 8 Car. Perd and Bensams case And there is a clause in the will that shews that the Testator did intend to advance his wife by this devise And the Feme shall be in by the power which shall make the estate of the lease good and it is not necessary to recite the power as it is held in Rogers case Maynard on the other side said he would not dispute the power but here is no such power given to the wife as it appears by the expresse words of the Will which doth only describe that she shall only make Estates but for her life otherwise she might make Estates in Tail or in Fee and if this should be the last part of the Will which doth limit the remainder would be destroyed and generals in a Will shall not revoke an express devise but they ought so to be construed that all the Will may stand together as Bonhams case is 8. rep Roll chief Iustice It is a difficult thing to shew the meaning of the Testator here but the general must not destroy the particular devise to which Nicholas Iustice assented and Roll enclyned that the Feme had power by the Will to make this Estate otherwise the words of the Will must be idle and void and it may be the Baron intended to give his wife such a power that she might destroy the remainders and otherwise there cannot be any construction made of the Will Ask Iustice differed in opinion and said it was unreasonable the remainder should be destroyed which is expresly limited by the Will and a Will doth differ from a conveyance Nicholas Iustice said that the words shall be expounded to shew his bounty to his wife but not to give her power to destroy the remainder Ierman Iustice There are expresse words for the Feme and the daughter and the Feme hath a power but not to destroy the Estate of the daughter Curia advisare vult Antea Booth against Lambert Trin. 1651. Banc. sup Hill 1649. rot 201. VPon a speciall verdict upon these words Argument and judgement upon special verdict the question whether dower well assiâ—gâ—ed or not viz. I do endow you of a third part of all the lands my Cosen I. S. your husband dyed seised of The question was whether the feme were well endowed by these words because he doth not say that he endows her by metes and bounds Chase held she was not well endowed and cited 8 Ed. 2.15 and said that here is incertainty which begets dissention which ought not to be and the thing is not here entire but may be devided And this is an assignment of dower which differs from a demand of dower for a demand may be general as in the cases of Thyn and Thyn in this Court and of Fairefax and Fairefax and so the book of 8 E. 2. entry congeable S 5. which seems to prove the contrary that is not to our case for it differs from it Merifield of Councell on the other side held the feme was well endowed and agreed the cases put by Chase That of Common right a feme ought to be endowed by metes and bounds yet sometimes it is otherwise as 3 Eliz. Dyer 27. a feme endowed in Common And the feme that is to be endowed and the
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
Testator meant Heir of his Lands and not the element of Ayre or a year as hath been strangely objected and would prove a ridiculous construction Osborns case 10. rep in Thyns case in this Court a demand of dower de capella although the word were of doubtfull construction in it self yet by the subject matter it was held to be made certain enough so the word Ayeare here shall receive construction according to the subject matter and the coupling of it also with the word Yexecutor which is also falsely written shews the Testators intent For answer to the main objection viz. that in 6 Car. there was a decree made in the Court of wards by advise of the Iudges that this was a void and sencelesse Will I say that that decree is not of so great waight as is a Iudgement given in a Court of judicature at the common Law and this was but an opinion delivered in Court where the Iudges were not Iudges and the decree was made as I am enformed because they believed the Will to be nonsence Heir the contrary whereof doth appear by my argument The Court enclyned strongly that the Testator intended to make the Devisee Heir of his lands and that the words can receive no other construction for other constructions would be very strange Will. and forced and the party that made the Will is to be considered as one that was inops consilii and also that wanted a scribe and his intent seems plain and shall not be taken according to the Civill law and if it should the word Heir will as well extend to the lands as goods Adjourned to be argued again Kymlock against Bamfield Mich. 1651. Banc. sup Mich. 24. Car. rot 592. KYmlock brought an Action upon the case upon an indebitatus assumpsit against Bamfield for making of apparel The Defendant pleaded Demurrer in an action on the case upon an indebitatus assumpsit that he became bound in a Bond of 60 l. to the Plaintiff in satisfaction of the Debt and that the Plaintiff accepted of it the Plaintiff replyed that he did not accept of it to this replication the Defendant demurred shews for cause that the Plaintiff had tendred an issue upon the non acceptance of the Bond whereas it should have been that the Defendant non devenit tentus On the other side it was said that it is well enough that it is sufficient to say non accep it and it is not necessary to say he refused the obligation and though the replication be not good yet the plea is also naught and therefore no Iudgement can be for the Defendant The plea is quod devenisset tentus whereas it ought to be devenit tentus And 2ly He shews not in what sum or place nor that he became bound in satisfaction Roll chief Iustice said that by entring into Bond the former contract is gone if you do not refuse it and it is not sufficient to say you did not accept of the Bond for you may yet accept it if you please and the party cannot plead non est factum Contract if you bring an Action upon it until it be absolutely refused and the contract here is turned into a Bond and the law determines the contract Plea and it is not all one with pleading of the acceptance of a horse in satisfaction or or any other thing as a collateral satisfaction and the Plaintiff ought to shew that he refused the Obligation and doth yet refuse it And here is a negative preignans Negative preignan◠for you imply by saying that you accepted not the Obligation in satisfaction that he gave you the obligation and you might have said Non devenit tentus and for the other exceptions they are to no purpose Discontinuance And therefore Iudgement ought to be given against you but by the favour of the Court we can give you leave to discontinue your Action Harding against Freeman Mich. 1651. Banc. sup HArding brought an Action upon the Case against Freeman and declared against him Arrest of Iudgement in an Action upon the case upon the sale of a Horse that the Defendant did sell unto him a Gelding and upon the sale did falsely affirm unto him that the Gelding was his own Gelding and that he bred him of a Colt whereas he bred him not of a Colt neither was it his own Gelding but another mans Gelding and so concludes to his damage Vpon not guilty pleaded and a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement 1. That in this sale of the Gelding the Defendant had made no warranty of him and therefore though the sale were not good yet the Action lies not 2ly The Plaintif doth not declare that the Defendant knowing the Gelding to be another mans did affirm him to be his own and so here doth not appear to be any fraud in the sale Twisden answered that the words are sufficient to imply a disceit though they express not that he knowing it to be another mans horse did make that affirmation for the words are that he did it falso et fraudulenter and affirmed the Horse to be his own But the Court stayed the Iudgement for they said that here is no direct affirmation but only an intendment that scienter fecit yet afterwards judgement was given for the Plaintif Davis against the Lord Foliot Mich. 1651. Banc. sup DAvis brought an action of Assault and Battery and wounding against the Lord Foliot and had a verdict against him and a writ of enquiry of damages For a new writ of Enquiry of damages and upon the writ of Enquiry 200 l. damages were found The Plaintif moved the Court for a new writ because by reason of the wilfulness of the Iury the damages were found too small Twisden on the other side urged that it could not be because there was no miscarriage proved in execution of the writ but it appears to be well executed Roll chief Iustice answered though we grant not a new writ yet we can increase the damages upon view of the wound and here appears to have been a foul Battery by the dagger produced in the Court Damages increased by the Court. and by the party himself that is wounded and it is not fit that a wilfull Iury should prejudice the party therefore either consent to a new writ or else bring your witnesses on both sides and we will hear the motion again At another day Wild said the Court cannot increase damages upon a view of the party if he be not maimed and here is no maiming but only a Battery and wounding But the Court answered that they would advise upon that point for it séems there is the same reason for encreasing of damages in both cases At another day Green moved for increase of damages upon the view and urged 9 H. 4. f. 1. 3 H. ◠◠10 H. 4. and Bret and Middletom case in this
Plaintiff it was moved in arrest of Iudgement that the words are not actionable 1. Because the words spoken are of spiritual conusance and punishable in the Ecclesiastical Court and not at the Common Law 2ly The party may keep a Bawdy House and not know it to be such and then he is not punishable for it and so cannot be prejudiced by the speaking of the words 3ly Case There is no Statute against keeping of a Bawdy house as the Declaration lays it but for keeping of a Common Bawdy house But Ierman Nicholas and Ask Iustices Roll chief Iustice being absent held that the words are actionable for the keeping of a Bawdy house is an offence punishable at the Common Law as being a misdemeanor and breach of the peace and therefore ordered judgement to be entred except cause should be shewn to the contrary Saturday next Green against How Pasch 652. Banc. sup Entred Hill 1651. rot 1295. Q. PAnel moved for How the Defendant to arrest judgement after a verdict given against him for Green the Plaintif in an action upon the Case brought for speaking these words of her viz. Arrest of Iudgement in aâ— Acti â—n upon the Case for words You are a Whore and a Iade and a strumpetly Whore and I will prove you a Common Whore his Exception was that the words are not in themselves actionable for they are but words of choler and heat and the Plaintif is not brought within danger of the late Statute made against whoredom by the speaking of them and he cited for authority Freeman and Childers case Trin. 1651. rot 45. where these words viz. You are a Whore I will prove you an arrant Whore were adjudged not actionable The rule was to stay judgement till the Plaintif should move Barcock against Tompson Pasch 1652. Banc. sup Mich. 1650. rot 444. IN an Audita querela the Case was this Where an Audita querela lies for the Bail upon an erronious judgement against the principal An Action of Debt was brought against the Principal and a judgement upon a nihil dicit obtained but no capias ad satisfaciendum issued forth against him Afterwards 2 scire facias were taken out against the Bail and 2 nâ—chils thereupon returned and thereupon judgement was given against the Bail who thereupon brings his Audita querela The Question was whether the Audita querela did lie or not in regard that the scire facias issued forth against the Bail before any capias ad satisfaciendum was taken forth upon the judgement upon the nihil dicit against the Principal Green of Councel with the Defendant held that the Audita querela did not lie because that the party hath other remedy to relieve himself and therefore the Audita querela lies not for that is given only where the other party hath no other remedy 21 E. 3. f. 12. Brook Audita quer 18. And besides here are two nichils returned against the party which do amount to a scire feci and so the party is warned and therefore he comes now too late to have his Audita querela for here is as much as a judgement by default after an appearance and here is no release and there is a judgement executed and in force and not reversed by the Principal Green and Le Grices case Pasch 39. Sir Francis Mores Reports Wild for the Plaintif held that the Audita querela did well lie because that no scire facias ought to have issued against the Bail before a capias ad satisfaciendum taken forth against the Principal And an Audita querela is in the nature of a sute in Chancery and the party comes soon enough here to be relieved though the scire facias be returned for the return thereof shall not bar him from his Audita querela although it be now too late for him to reverse the judgement by a writ of Error and the books 21 E. 3.13 and Kelw. 23 24. are in the very point And the party by the return of the 2 nichils is not in Court And in Mores Reports in Hobs and Todcasters case 38 Eliz. it is adjudged that an Audita querela doth lie Roll chief Iustice when one is Bail in the Common Pleas he is bound to bring in the body of the Principal Bail or to pay the debt And Pomeroys case is that until a Capias be returned against the Principal the Bail cannot forfeit his Recognisance Recognisance Forfeiture for the non-appearance of the Principal for the filing of the Capias is not sufficient but it must be returned And this was the antient course there and the Law so held to be but by usage of later times and out of indulgence shewed to the Bail it hath been held sufficient for the Bail to bring in the principal after the retorn of the Capias and now at this day out of greater indulgence afforded unto the Bail it is well enough if the Bail bring in the Principal at any time before the return of the second scire facias but after it is returned then it is too late for him to bring him in Error and that is the reason that in such Case a writ of Error lies not for the Bail to reverse the judgement against the Principal If a scire facias be brought against the Bail and he pleads that the Principal dyed before the return of the Capias against him it is adjudged to be a good plea for the Bail to discharge himself Plea but to plead he dyed after the return is not good And it is a good plea for the Bail in a scire facias brought against him to say that no capias was returned against the Principal And here is a good discharge in Law against the Bail But the question here is whether the return of the two Nichils be not a Bar to him now and that he hath not thereby lost his advantage to bring his Audita querela Audita querela because by the return thereof the party is supposed to have notice and therefore a writ of Error clearly lies not to reverse this judgement though it be upon a nihil dicit And as to that in as much as the party hath no other remedy to help himself and it is apparent that he is damnified by an undue judgment it is reason he should bring his Audita querela Barns and Corbets case The Bail cannot say the Principal hath paid the money if he have not an acquittance or matter of Record to prove it and in Sir John Mounsons case upon two nichils returned adjudged that the party might have his Audita querela and therefore the Plaintif ought to have his Iudgement Ierman Iustice dissented But Nicholas Iustice absente Ask agreed with Roll and said that for want of the return of the Capias the judgement was erronious and the 2 scire facias might be returned behind the parties back therefore it could not be said to be all
find my goods Action on the Case for goods found and refuse to deliver them to me an Action upon the case lies against him although he convert them not to his own use Bond and Martin Mich. 1652. Banc. sup BOnd brought an Action of Debt upon a Bond given unto him as Sherif to save him harmless The Defendant pleaded a special plea Special plea to an Action of debt upon a Sherifs Bond. which amounted unto no more than that he had saved him harmless to this Plea exception was taken because he did not shew how he had saved him harmlesse To this Wadham Windham answered If it be that he hath from time to time saved him harmless it is well enough Roll chief Iustice It is not so here and therefore let the Plaintif have judgement nisi Mich. 1652. Banc. sup IT was said by Roll chief Iustice Where an express averment ought to be Averment that in an Action of Trespass quare vi et armis c. There ought to be an express averment in the Declaration of the force and it ought not to be expressed with a whereas there was such a force Baynton and Cheek Mich 1652. Banc. sup Trin. 1651. rot 574. BAynton brought an Action of Accompt against Cheek as his receiver Plea to an Action of Accompt The Case in sum was this Baynton deposited two hundred pounds laid upon a horse-race in the hands of Cheek to be delivered to the party that should win according to Articles made betwixt the parties Baynton supposing he had won the money demands it of Cheek who had delivered over the money to another whom he supposed had won the wager and the money being not delivered to Baynton Baynton brings this Action against Cheek Cheek the Defendant as to one hundred pounds pleads Ne unques receptor Plea upon which plea he was adjudged to accompt before Auditors and before the Auditors he pleads in discharge of the accompt that he had delivered over the money to another that won the wager The Plaintif replyed That there was foul play used by the other party in striking one of the horses that ran the race upon the Nose which was foul play and against the Articles made betwixt them and so he ought not to have delivered the money The question was whether this was a good plea in discharge of the Accompt before the Auditors Roll chief Iustice said The plea was not good in regard that the Defendant was adjudged to accompt which doth imply that the money was fairly won by the Plaintif Latch on the other side urged that the replication was not good but is impertinent and therefore that the Plaintif can have no Iudgement though the plea in Bar be not good but that there ought to be a Repleader At another day Green moved for judgement for the Plaintif and cited Hob. 112. Taâ—kers case That an issue joyned upon impertinent matter is not helped by the Statute and Kent and Halls case in Hob. Rep. but here is only an informal issue which is helped by the Verdict as are Rawden Tuts case and Napper and Dawkes case in Hob. Reports and Mich. 2 Car. Giggon and Purchases case and said that at the Common Law a Tryal upon a double issue was good Broke Issue 30. 2ly This plea of the Defendant ought to have been pleaded in bar of the Action and not in discharge before the Auditors 1 Ed. 5. 2. Brook Accompt 83. and Dyer 196. Hungerford case Latch on the other side said that the Replication is imperfect and that the Verdict helps it not the Defendant alleges the Articles made upon the wager and the replication is about striking of the Horse and answers not the matter pleaded in Bar for the Act of the Rider viz. the striking of the horse is not the Act of Bish who made the Articles and besides here is no breach of Articles for they doe not prohibite to strike the Horse or to ride foul according to the Laws of a Horse-race and the Rider doth not appear to be Bish his Servant but a third person and an Action of the Case lies against him and not against Bish who for ought appears hath done nothing against the Articles and the matter in bar of the Accompt is well pleaded and could not be otherwise as the Case is and it is well enough though it be not pleaded in bar of the Action for he could not have pleaded ne unques receptor pur accompt render 9 E. 4 1â— Dyer 19 H. 6. 5. As he could not have pleaded the general issue and given the special matter in evidence And he cannot plead thus in bar of the Action of Accompt and there is not one book that says otherwise 41 E. 3. 31. 5 H. 5. 5. 19 H. 6. 5. 22 H. 6. 49. 21 E. 4. 67. 5 H. 5. 1. 5 E. 4. 41. 1 E. 5. 2. 27 H. 7. 35. Which books do shew it may be as well pleaded before the Auditors as before in bar of the Action 14 E. 3. Fitz. Accompt 68. 21 E. 4. 54 By these books he is compelled to plead these matters before Auditors and the other books are not expresly against it And in this case here is not a bailment purely to deliver over but there is subsequent matter which directs how it shall be delivered over and this matter he must plead But admitting the Bar to be ill if the replication be impertinent and that he hath confessed that he hath no cause of Action then it is with us and here is no pertinent matter pleaded to avoid the matter confessed and so the Iudgement ought to be against the Plaintif 3 Report Ridgeways Case is That if impertinent matter be in a replication which answers not the bar Iudgement ought to be given against the Plaintif and the matter confessed is not in bar of the Action of accompt as is objected 1 H. 7. 2. 21 H. 6. 26. Hales The matter of delivery makes not the matter The subsequent matter is grounded upon the Condition made upon the delivery Dyer 169. and here is an insufficient bar and the matter of the replication is good according to the matter alleged in the bar for the Articles ought to be interpreted according to the intention of the parties which was that the race should be fairly won which is not so here 18 E. 4. 4. matter of Covenant by deed may be discharged by subsequent matter of fact and the Riders here shall not be accompted meer strangers for they are Instruments made by the parties and there is confidence put in them to perform the act of riding and their acts shall be the acts of the parties And here is nothing shewed in the replication which destroys the Action Roll chief Iustice If you have confessed the Articles and alleged impertinent matter in the replication how can you take advantage of an iâ—â— bar and how can you interpret the intent of the Articles otherwise than is
It is considerable in regard it is an office of trust whether it may be leased out although he may make a Deputy Therefore argue it again the next Term. Baker and Andrews Mich. 1652. Banc. sup Trin. 1650. rot 1469. BAker brought an Action of Trespass quare vi armis clausum fregit Demurrer to a replication in Trespasse vi et armis and for taking his Cattel the Defendant as to the force and arms pleads non cul and as to the rest he justifies that the Cattel went in through the defect of the Plaintiffs inclosures the Plaintiff replyes that the Cattel came in through another mans fence into his ground to this replication the Defendant demurs 〈◊〉 shews for cause that the Plaintif doth not assign where the place of the other Close lyes through which the Cattel came through Yard said it is not necessary to shew where it lyes for they went not in where the Defendant hath alleged so the traverse is well taken Wadham VVindham on the other side answered here is a new assignment and he answers not the Trespass for which the Action is brought and because it is a new assignment we must give a new answer and therefore you must shew the place where your new assignment lyes Roll chief Iustice He pleads no more but that the Cattel came in at another place than is pleaded and he needs not shew the place But here the Defendants plea is not good Plea for he pleads a prescription where it ought to be a custom that the occupyers of the land ought to make the sences and he ought not so prescribe in the person Iudgement for the Plaintiff nisi Mich. 1652. Banc. sup BY Roll chief Iustice Who may take advantage of a fault in a Plea Advantage If there be a fault in a plea in matter of form and after there is a fault also in the replication and the Defendant demurs to it but shews no cause of demurrer he shall take no advantage of this fault in the replication but he who joyns in the demurrer shall take advantage of the ill plea and so was it adjudged Pasc 1. Car. in this Court in Prat and Thimblethorps â—ase and he said that all faults in pleading are incurable at the Common Law and therefore those that are not helped by Statutes are left as they were at the Common Law Mich. 1652. Banc. sup ONe was made Constable by order of a quarter Sessions but the party refused to serve Motion to quash aâ— order of Sessions and removed the order hither by Certiorari moved to quash the order but the Court would not do it although ther were material exceptions taken against it but ordered him to plead because they perceived the party was stubborn and they would not give encouragement to such persons Heath and Vdall Mich. 1652. Banc. sup HEath a Caryer brought an Action of the Case against Vdall Arrest of Iudgement in an Action upon the case and declares among other things for plundering of him of viginti fardellas Anglice packs and in arrest of Iudgement it was moved that the words vinginti fardellas Anglice packs is uncertain But Maynard argued that it might be good because the Caryer could not declare otherwayes for he could not know what was in the packs and he cited one Bedingfields case Trin. 10. Car. Declaration where an Action was brought for a library of books and for apparell and adjudged good But Roll chief Iustice said it could not be good for the apparel Wadham Windham on the other side held the words uncertain as they are and said he ought to have shewed that they were packs with goods or have shewen what was in them for a pack is but a measure of a thing Roll chief Iustice answered if it be but a measure of a thing then no damages are given for them and then the Action is good for the rest But we will advise Afterwards in the same Term Maynard moved for the opinion of the Court and thereupon the Court held that the words are incertain as they are for he ought to have expressed what was in the packs and ruled a nil capiat per billam to be entred Levingston and Crompton Mich. 1652. Banc. sup LEvingston brought an Action in this Court against Crompton Exceptions to a plea of privilege The Defendant pleads that he is a Clark of the Chancery and that all Clarks of the Chancery ought to be sued in the Chancery only and not elsewhere and demands judgement if he ought to make any other answer in this Court Two Exceptions were taken to the plea 1. He saith That all Clarks of the Chancery have used to be sued in the Chancery and not elsewhere and doth not say nor any of them have been used to be sued elsewhere and though all of them have not been used to be sued elsewhere yet that hinders not but that some of them have been sued elsewhere 2ly He pleads that he is a Clark of the Chancery and ought to be impleaded in the Chancery held at Westminster before the Keepers of the liberty of England c. time out of mind which is not true Hales answered That this Court ought to take notice of the privilege of Chancery Notice Privilege although it be not well pleaded But Roll chief Iustice denied that they ought to do it and said That it is the Custom for the Clarks of the Exchequer when they plead their privilege to bring the red book wherein their privileges are written into the Court and upon sight of their privilege there written it is used to be allowed but it is not so of the privileges of the other Courts but they must be pleaded and so here And because it is not well pleaded here therefore shew cause why you should not plead in chief Pitton and Rey. Mich. 1652. Banc. sup PItton appeared to an Action brought against him at the sute of Rey Motion for the Plaintif to declare speedily but no declaration was put in against him Vpon an Affidavit that the Defendant was a Merchant speedily to go to Sea It was moved for him that the Plaintif might forthwith declare against him that thereby he might direct his Attorney what to plead and might have his liberty to be gone Roll chief Iustice By the course of the Court he hath thrée terms liberty to declare but this is an extraordinary Case Therefore let him declare Thursday next otherwise he shall not declare till he come back Nota. Mich. 1652. BY Roll chief Iustice A private Sessions of the Peace is not said to be held for the County Staples Case Mich. 1652. Banc. sup A Rule was read on the Capital side for Staples a Iustice of Peace of Sussex Cause why no Attachment against a Iustice of Peace to shew cause why an Attachment should not be granted against him for procéeding upon an Endictment of forcible entry and
weekly to a Parish Order of Sessions quashed towards the keeping of a Bastard Child was quashed because it did not appear by the order that the Child was born in that Parish to which the mony was awarded to be paid Hill 1652. Banc. sup THe Court was moved to discharge the plea of not taking the engagement pleaded to a Soldier in the States service in Ireland Motion to discharge the plea of engagement Certificate upon a certificate under the hand and seal of an officer in the Army there under whose command he was that he had taken it and also upon a certificate under my Lord General Cromwells hand and Coronel Whaleys hand that they did believe the other certificate was true Roll chief Iustice answered we cannot help you for our hands are tyed up by the Act from which we must not vary Nota. Hill 1652. Banc. sup ROll chief Iustice said Whether one endicted of perjury be bailable that he doubted whether one endicted of perjury may be bailed although the clarks of the criminal side said he might Q. Brightwell and Robson Pasch 1653. Banc. sup AN Action upon the case was brought for delivering in a false note of goods Arrest of judgement in an Action upon the case for which excise was to be paid into the office of excise whereby he was compelled to pay 50 l. to his damage c. upon not guilty pleaded and a verdict for the Plaintiff Green moved in arrest of Iudgement because that the Declaration did not set forth the Act of Parliament which gives authority to the commissioners of excise And 2ly The damage is not coupled with the fraud nor is it exppessed how he was compelled to pay the 50 l. and the Court is not bound to take notice of the Ordinance of Parliament touching the officers of the excise because it is not a general law But Roll chief Iustice answered that the fraud is the ground of the Action and all the other matter set forth in the Declaration is but matter of inducement to the Action and it is not requisite to be so punctual in setting that forth as is surmised and we are bound to take notice of the Ordinance Inducement Notice and the Action brought is to recover damages caused by the fraud and it is no more necessary to set forth all the circumstances occurring in acting of the fraud than for one to set forth all processes in an Action grounded upon a fraudulent Iudgement obteyned against him by which he is damnified Iudicium nisi c. pro querence Pasch 1653. Banc. sup BY Roll chief Iustice Endictment for breaking the Peace If one that is bound to the Peace do break his recognisance he may be endicted upon it for this is a new offence Pasc 1653. Banc. sup THe Court was moved upon an Affidavit to discharge a Prisoner brought to the Bar by a habeas corpus Motion to discharge a Prisoner because he was arrested on the Sabbath day Roll chief Iustice plead this matter to his Action that arrested you for we cannot discharge you upon an affidavit Custodes and Rickaby Pasch 1653. Banc. sup RIckaby convicted of Felony for killing a man during the wars Motion to discharge a Prisoner upon the general pardon Surmise and brought hither by a habeas corpus moved by his councell to be discharged upon the Act of the late general pardon Roll chief Iustice It appears not to us whether you are excepted out of it or no. But enter your surmise upon the Roll by the advice of your councell as you will stand to it Postea Pasch 1653. Banc. sup BY Roll chief Iutice One cannot answer for an infant as Guardian Who may answer for an Infant as Guardian Motion Prochein amy Infant either in the Chancery or in any other Court except he be asigned Guardian by the Court for if he might that were to make himself his Guardian and that might prove to the damage of the infant therefore if one will sue an Infant he must move the Court to assign a Guardian that may answer for him But an Infant may sue per prochein amy though his prochein amy cannot answer for him Pasch 1653. Banc. sup BY Roll chief Iustice Who may be a witnesse although upon a Tryal one who is a Legatee by a Will may not be admitted for a witnesse to prove that will yet he may be examined as a witness to prove a deed or other thing which hath not relation to the will in respect of the interest which he claims by the Will And he then also said that Deeds were inrolled at the Common Law Eorollment for the preservation of them although not to pass any estate as it is now by the Statute of Enrolments made 4 H. 7. Pasch 1653. Banc. sup BY Roll chief Iustice How a disseisin is taken away Entry If one disseise me and a Stranger enter upon the disseisor for me this Entry takes away the disseisin and if a Copyholder of a Manor enter as a Commoner it is in right of the Lord although it be not by his command nor he have any notice of it Nota Pasch 1653. Banc. sup AN Action was brought for not paying monies upon the receipt of a bill of exchange according to the custom of Merchants Arrest of Iudgement in an Action to non paying monies upon a bill of exchange and upon a verdict found for the Plaintiff it was moved in arrest of Iudgement and the exception taken was that it appears not whether the demand of the mony sued for was according to the old stile or according to the new and so it is incertain whether the mony was due when it was demanded or no for if it were demanded according to the new stile 〈◊〉 as not due but if according to the old stile then it was due for the new stile is 10. dayes before the old Twisden answered it shall be accompted according to the old stile for that is used here in England and he said if there be two Perchants that have a joynt trade and one of them accept a bill of Exchange if he do not pay it an Action lyes against the other Roll chief Iustice If the bill of Exchange be accepted there is no necessity to allege a demand Demand and the demand here is not laid as part of the custom upon which the Action is founded Therefore let the Plaintiff have his Iudgement Herbert and Lane Pasch 1653. Banc. sup HErbert a Carryer brought an Action upon the case against Lane an Inn-keeper Arrest of Iudgement in an Action upon the case for goods lost out of the Inn viz. certain packs full of linen cloath and other goods and after a verdict for the Plaintiff it was moved in arrest of Iudgement that it doth not appear by the Declaration what sort of cloath was in the packs nor of what value the cloath and
wilfull murther he could not pardon because it is against the Law of God and he cited 12 H. 8. f. 5. Brudenell By the Law delivered to Noah Gen. ver 6. shedding of blood was made unpardonable and that is a perpetual Law Stat. 13. R. 2. C. 1. The King may delegate administration of Iustice to his Ministers but not dispensation of mercy By the Statute of 13 R. 2. c. 1. The King was admonished not to pardon murther so generally as he used but enacted That if in his pardons he did not expresse the word Murther the pardon should not be good and the word Murther is not expressed in this pardon and therefore it is not good nor to be allowed 3 Instit 236. 8 H. 6. 20. 9 H. 6. 8. Kel 9 Nor doth the King in this pardon recite the Endictment it self for then it may be it might have altered the Case but only recites the fact generally and though the words in the pardon be general and seem to include murther yet they cannot make the pardon good because it wants the express word it self viz. Murther and although the Charter be not void yet it cannot be allowed for want of that word nor can the general non obstante in the pardon dispence with the Statute of 13 R. 2. for all non obstantes are good only where the King takes notice of the Law wherewith he dispenseth And as to the Statute of 13 R. 2. First By it the just power of the King is made certain and ought to be strictly pursued 2ly That Statute was made of grace and as a boone to the people in which they have a special interest and is not to be abridged 3ly It was made for the more free administration of Iustice with which the King may not dispence Hob. f. 214. Here Lyliars case 11 Rep. f. 88. And although the party here be prosecuted at the sute of the King yet the prosecution is for the benefit of the people and therefore the King cannot pardon him 3 Inst f. 337 and so he prayed the pardon might not be allowed Hales appointed by the Iudges to argue ad informandum conscientiam as Windham also was argued for Rickaby that the pardon was to be allowed for the question now is not whether the pardon be to be granted or no. And 2ly he held that here is a good non obstanâ—e in the pardon to dispence with the Statute and he argued that murther at the Common Law was pardonable by other words as well as by the word murther viz. by the word Felony and by the word Death of a man for murther is but Felony in a high degrée and majus et minus non variant speâ—iem 4. rep Holfords case and the Statute of 13 R. 2. makes this cleer and that Statute is dispensed with by the non obstante For that Statute was not made to disable the King from pardoning murther but to direct and enform the King and with that the King may dispence by a non obstante 16 R. 3. Tit. graunts 34. 5 Iac. in this Court Bakers case And here is a dispensation by the Statute of R. 2. that this may be said a pardon at the Common Law for it appears by the words of the pardon that the King intended thereby to break through the Statute and to pardon the party what ever his offence was for although the non obstante do not expess the word murther yet it is good for there are equivalent words to murther in the pardon for the non obstante to dispence withall As if the King grants a pardon notwithstanding the Statute of Rich. 2. It is necessary to be referred to that clause in the Statute which is to be dispensed withall and so is it here for there is no other end for the King to dispence with the Statute of R. 2. C. 13. but for this clause and besides here is a special non obstante and not a general and for authorityes he cited Stamford 101. pleas of the Crown 236. and for presidents 31 Eliz. 4 Iac. 5 Iac. 6. Iac. and many others and said that he found none against them Roll chief Iustice Were it not for the presidents I hold there would be but little question in the case but some of these questions have been debated in some times although we cannot question the King for granting such pardons yet it is questionable whether he may grant them by the Law of God but the King may do it in some cases Pardon but here is a Statute that sayes he shall not do it if he do not take notice of the fact in his pardon by the name of murther and here is no such expression but the words are general if the King pardon malum â—se with an non obstante it is not good But let us see Presidents and we will advise till the next Term. The next Term Roll chief Iustice in the behalf of himself and the other Iudges delivered the opinion of the Court in this case to this effect We are all of one opinion and my brothers have desired me to deliver the reasons of thâ—irs and my opinion First I will open the Record which in effect is this Rickaby was endicted at Durham for murther and the endictment was removed into this Court by a certiorari and Rickaby brought hither by a habeas corpus and being demanded what he could say for himself why he should not be adjudged to die he pleaded the pardon of the late King which pardons the death of Curtine in very general words but the pardon doth not expresse the word murther and in his plea he mentions not the Statute of 10 Ed. 3 by a non obstante and this is set forth for confirmation of his plea and the Statute of 13 R. 2. is alleged with a non obstante The case in brief is Rickaby and others endicted for killing George Curtine and brought bither pleads his pardon as is before expressed The question is whether the pardon is to be allowed or not This case hath been well argued and the like case with this was never called into question or argued before this and therefore if we shall not allow this pardon now we have better reason to move us to it than others have had to do the contrary and therefore we shall send him into the Country to receive Iustice there for his offence for we are all of one opinion that the pardon is not to be allowed and that for these reasons the question here is not whether the King will pardon murther but Cook saith the King will not pardon it if he know it to be murther but the first question is whether the King can pardon murder without a non obstante 2ly Whether he can do it with a special non obstante 3ly Whether he can pardon it by this non obstante in this Charter of pardon 4ly Whether Rickaby hath pleaded this non obstante so that he may
assigned for it is that he paid not the mony for which the Plaintiff was bound with him at such a day according to his promise Twisden on the other side said that the consideration is to pay the usury for the mony for which the Plaintif was bound with the Defendant which is not a good consideration for it is against the Common-law to let mony for usury and so it was adjudged 2 Car. and the Statutes do but tollerate the taking of usury for monies 2ly Here is no time of the consideration set forth Latch The usury here is no more than the Statute allows and so it is a good consideration Alleyn The promise declared upon is double 1. to pay mony 2ly To save harmless and the breach is assigned generally Case and not particularly as it ought to be Roll chief Iustice If two breaches be assigned and the one well assigned and the other not yet the Action lies well enough but here is but one breach assigned viz. the non-payment of the mony at the day And for the other matter I hold it a good consideration to assume to save one harmless from paying of Vsury Consideration and the usury here expressed is lawfull by the Statute and so it hath been resolved since 2 Car. and therefore let judgement be for he Plaintiff nisi Turner and Trapes Hill 1653. Banc. sup TUner brought an Action of Debt upon a recognisance in the Pettibagg The Defendant prayed oyer of the Condition there Motion to alter a Plea in the Pettibagg-Office and had it afterwards he shews this matter to this Court and prays in regard he had mistaken his plea that he may replead Roll chief Iustice This cannot be granted upon motion here for if the issue be joyned in the Pettibagg you must try it we can make no rule but by consent Hill 1653. Banc. sup VVAdham Windham moved for his Clyent To plead specially that he might have liberty to plead secially in an Action of Trespass and Ejectment and not generally not guilty Roll chief Iustice For what cause VVindham Because there hath been matter given in evidence at a former Tryal which ought not to have been Roll chief Iustice proceed according to the course of the Court if the other will not consent you shall not plead specially yet let him shew cause why you may not plead specially Barker and Elmer Hill 1654. Banc. sup THe Case was this Whether a Mis-tryal or no. one of the Iustices of Assize falling sick and dying at Chelmesford in Essex the Assises were adjourned to Brentwood in the same County afterwards and before the sitting at Brentwood the other Iudge fell sick and dyed at London and a new Commission issued forth to authorise another Iudge to sit at Brentford according to the adjournment and there a Tryal was had upon the old Iurata retorned before the other Iudges The question was whether this were not a mistryal in regard there was not a new Iury retorned The Case was divers times moved and the Court took time to advise but at length Roll chief Iustice delivered the opinion of the Court Mis-tryal that this was not a mis-tryal because the death of the Iustices was not material to make it void for the Iustices are not named in the Iurata but the Cause is expressed generally to be tryed by the Iustices And he said that he held it for a rule that if a Clark mis-enter a thing usual in matter of form Mis-entry Amendment it is to be amended but the error of the Iudge may not be amended and he cited these Presidents Mich. 13 Car. Sawyer and Hortons Case in this Court and Hill 15 Car. Belch and Fates case in this Court Hill 1654. Banc. sup AN Action of Assault and Battery was brought against two Motion to strike one Defendant out of the Declaration one of them pleads his privilege of Parliament and the other non cul The Plaintif moved the Court the he might strike him out of the Declaration who had pleaded the privilege and might proceed against the other only But the Court would make no rule but bid the Plaintif proceed as he pleased at his own peril Hill 1653. Banc. sup ONe Cock was committed by the Court for delivering a Bill of Midlesex to arrest one as he was coming to the Court about his occasions Commitment for contempt to the Court. but was presently released paying the fees and discharging the party arrested and the Bailif was reproved but not committed because he said he knew not that the party had any business in Court and that he arrested him out of the Hall Nota. Hacker and Newborn Hill 1653. Banc. sup IT was shewed to the Court that the Plaintif had heretofore had a tryal at the Bar for the same thing for which he now brings his action To stay proceedings till costs paid in a former Action and that it went then against him but he hath not yet payed the Defendant his costs and now brings a new Action It was therefore prayed that he may pay the Costs taxed in the former Action before he be suffered to proceed in this Action Roll chief Iustice Let it be so ruled Higgs and Harrison Hill 1653. Banc. sup Mich. 1653. rot 429. HIggs brings an Action of Trespass quare clausum fregit against Harrison an Attorney of the Common Pleas. Demurrer to a plea of privilege by an Attorney The Defendant pleads his privilege by an Attorney and to this plea the Plaintif demurred the question was whether he may plead this plea by Attorney or ought to plead it in proper person Latch argued That he ought not to plead it by Attorney for this plea is not a plea to the jurisdiction of the Court but it is only a prayer to the Court and he might have done it ore tenus and pleading it by Attorney his plea cannot be entred for then the plea of privilege would be destroyed in making him to attend Every one by the Common Law ought to appear in person and there is no Statute Law nor usage that authoriseth an Attorney to make an Attorney to demand his privilege 2ly It is against the dignity of this Court that he should be admitted to do it 3ly By making of an Attorney he destroys the very reason why he claims his privilege which is to be spared of his attendance which he needs not if he make an Attorney and his making of an Attorney here is a general warrant to defend other causes as well as this and the Case of an Essoign objected makes for me which is but to pray an excuse and after an Attorney made one cannot cast an essoign except it be where the Attorney cannot answer 4 Ed. 3.34 And there is no authority can be shewed that he may make an Attorney But on the contrary part there are many presidents where Attorneys have prayed their privilege in person and these me
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
the day it was offered for cause that there ought to be no prohibition because where an administration is granted to one unto whom the Ordinary is not bound by the Statute to grant it as it is in this case there the Ordinary may take a bond of the party with condition to make an equal distribution of the goods but otherwise it is where Letters of administration are granted to one to whom by the Statute they ought to be granted and one Sharp and Sympsons case 14 Iac. was cited Ordinary and Hob. 191. On the other side it was urged that the Ordinary hath no authority to take such a bond for the equal distribution of the goods and the difference put on the other side was denied and it was said that when the Ordinary hath once committed the Letters of Administration to the party Power determined Administration upon condition his power is then determined and he cannot grant Letters of Admistration upon Condition Glyn chief Iustice The taking of the Bond is against the Statute for the wife ought to be preferred before the next of the Kin notwithstanding the Statute and so is the common practice except there be a special cause for the contrary as where the wife hath had a former provision made for her by her husband Prohibition granted c. Therefore let there be a prohibition nisi Trin. 1655. Banc. sup THe Court was moved on the behalf of an Infant to discharge a Guardian assigned by the Court To discharge a Guardian with an intent to make Richard Somers Attorney of this Court Guardian in his room and that the former inspection may be discharged Inspection and that the infant may by now inspected again because when the former inspection was and the Guardian assigned there was no action depending in Court against the Infant Glyn chief Iustice Let it be so for the cause you have alleged and give notice of it to the former Guardian Sherlock Trin. 1655. Banc. sup rot 1320 or 1315. ONe Sherelock a Widow of the Parish of Earth in Sussex Error by an Infant to reverse a fine an Infant brought writ of Error to reverse a fine levied by her of her lands whilst she was a Covert Baron and the Court was moved that she might have a Guardian assigned her to prosecute for her and that she might be inspected by the Court Inspection and that the inspection might be recorded and there was an Affidavit made by one in Court that he knew the Infant who was there present and the time of her birth and baptising and swore the times precisely the Church book was also produced in Court and proved by Oath wherein the time of her baptising was entred and that she was the same person upon which she had by her own election Aâ—twood an Attorney of this Court assigned for her Guardian Guardian assigned Entry and the Affidavits were ordered by the Court to be recorded and the inspection to be entred and a scire facias awarded against the heir The Protector and Craford Trin. 1655. Banc. sup VPon a return of a Mandamus directed to the Master and Fellows of Gonvile and Cayus Colledge in Cambridge A Mandamus to restore one to an Ushers place in a Free-school and the return and exceptions to 〈◊〉 Au hority Notice Action at Law Extraordinary course to restore one to an Ushers place of a Free-school in Cambridge of which they are visiters It was excepted against it that they had not shewed that they had any authority to deprive the party of his place And 2ly It doth not appear that they gave him any notice of their proceedings against him whereby he might prepare to defend himself Serjeant Twisden made question whether a Mandamus did lie in this case because a School masters place is a temporal Office and an Action at the Law lies for the party to recover it and therefore it seems a Mandamus which is an extraordinary course ought not to be granted and he rited 8 Ass and Sir Iames Bags case and Dyer 200. and said it is not like an Office without see Latch on the other side answered The Mandamus is allowed already and the legality of it is not now to be disputed and Sir Iames Bags case is not repugnant to this case for this is a publique office and not a private and tends much to the publique good Office publique private and is like to the case of an Alderman or Freeman of a Corporation or a Fellow of a College Glyn chief Iustice A Mandamus to restore one to a Churchwardens place hath been adjudged good It is true that for a private office a writ of restitution doth not lie but if the publique be concerned in the office it doth lie and though it be an office with a fee belonging to it that makes no difference for a Recorders place is an office with a fee and yet a writ of restitution lies for it But it appears here that the Schoolmaster hath much abused himself and therefore we will advise Writ of restitution Office with and without a Fee Mandamus Freehold At another day this case was moved again and then Glyn chief Iustice said I doubt whether a Mandamus doth lie in this case for it lies not for every taking away of a mans freebold as in the cases of a Keeper of a Park or a Stewardship of a Court Baron Wild questioned to whom the Mandamus could be here directed for he said that the Master and Fellows are no Corporation and he cited Boremans case of the Middle Temple Corporation Innes of Court voluntary societies who prayed a Mandamus to be restored to that society where it was held that the Innes of Court are not Corporations but only voluntary societies Latch on the other side said that it was very proper to have a Mandamus in this case for it is a publique office and not a private as a Keepers place of a Park or a Stewards place of a Manor are Iurisdiction and a Steward of a Court Leet is a publique Officer And this Court hath jurisdiction to reform all grievantes of this nature and to keep other jurisdictions in good order that they do not intrench one upon another here is no Visiter to whom the party may appeal and it were very unreasonable to leave him without remedy and Mandamusses have been granted for places of less consequence than this as in Pasch 2 Car. a Mandamus was granted to restore one to the place of Town Clark which is a private office and 19 Iac. a Mandamus was granted to restore one to a common Clarks place of a Will and 5 Car. and 18 Car. to restore the parties to Parish Clarks places And if the place be publique this Court will not leave the party to seek his remedy at Law and Alderman Estwicks case is well known who was restored to the place of a
Statute of 1 Jac. against stabbing made against Stabbing at the Iustice Hall in the Old baily for killing of Horwood and upon the evidence given for the Protector the Iury found a special verdict which was to this effect viz. that Horwood and another man with him came into the lodging of Buckner being Drury-lane and when they were come into the lodging that other man took down a sword in the Scabbard which hung there and stood at the Door of the Chamber with this Sword undrawn in his hand and kept the Door to kéep Buckner from going out till they might bring a Bailif to arrest Buckner for a debt which he owed Horwood whereupon upon some discourse between Buckner and Horwood Buckner takes a Dagger out of his pocket and stabs Horwood and kills him and whether this was within the Statute of Stabbing was doubted by the Iury Vpon which Buckner was committed to Newgate and after the Body and the Cause was removed into this Court by a Habeas Corpus and a Certiorari and argued divers times at the Bar and at last on the Bench and first Arthur Harris of Lincolns Inn opened the Record and only put the question and then on the behalf of the Prisoner it was moved that he might have a Copy of the Record and Councel assigned him such as he desired which the Court granted then it was prayed he might be bayled but that the Court would not grant but turned him over to the Marescall and gave day for the Protectors councel to be heard At which day Twisden for the Protector made this question whether Buckner was to have his Clergy in this case or were debarred by the Statute or not and he said this question should not have been made by the Iury as they have done upon the special Verdict but the Court ought to have made it for the Iury are only to procéed upon matter of fact and not upon matter in Law and he argued that he ought not to have his Clergy for the Statute of 1 Iac. doth not create the offence but leaves it to the Common law and only takes away the Clergy from the party that commits it and to prove this 1. It is not within the words of the Statute and 2ly it is not within the meaning of the Statute neither in its preamble nor in the body or in the provisâ— thereof for Buckner was not first strook nor had he a weapon drawn against him although he was kept a prisoner in his Chamber which was not a considerable but a slight provocation of him to move him to so fowl a fact And within the body of the Act there are no Acts expressed but having a weapon drawn against him or being first struck and this enumeration of the Acts excludes all other as it is in the Statute of Fines and in the Statute which takes away Clergy Also the reason of Law requires to allow the Clergy to one that is first stricken but here is no such reason and the party might have had his remedy against Horwood for comming into his Chamber and imprisoning of him by an Action of Trespass And the having a weapon drawn was a reason for the other to defend himself Finch Henage for the Prisoner argued that the Prisoner was only guilty of felony at the Common-law and is not within the Statute by which his Clergy should be taken away For first the Statute is to be liberally interpreted Interpretation because it is made in restraint of the Common-law and it was made only to prevent fewds betwixt the English and the Scotish Nation which were then apt to break forth and the quarrel here was not a drunken and sudden quarrel but acted upon deliberation and here is an Assault so great used against the prisoner that it amounts to a striking of him 43 E. 3. f. 41. 42 E. 3. f. 7. and the imprisonment of him is more than an assault and here is found a forcible entry into his Chamber and the sending for a Bailif and the standing at his Chamber door with a sword in the parties hand though not drawn which is as much in effect as if it had been drawn and 23 Car. the Clergy was allowed to two persons that aided and assisted a third person in stabbing of a fourth man Intendment and that because the Clergy shall not be taken away by intendments Glyn chief Iustice The Statute hath not béen so favourably construed as hath been argued for here is no stroak nor weapon drawn for his present defence as the Statute intends and stabbing with a Tobacco pipe and with a Halâ—â—â— hath béen adjudged to be stabbing within the Statute and the Statute doth not say being first assaulted as this case is but first stricken and I conceive not that there are any words in the Statute that will keep you out of it Day was given over to the next Term. At which day the special verdict was again repeated by Serjeant Maynard and by him it was argued for the prisoner that he was not within the Statute of 1 Iac. of stabbing because first here was an unlawfull imprisoning of Buckner in his own Chamber and this could not be without an assault next this Statute is not to be literally interpreted for if there be Acts of terror used against onâ— although a weapon be not drawn yet he is not within the Statute although he kill another for the taking up of a Candlestick to strike another hath been adjudged a weapon drawn and he cited Patye and Horwoods case and all the persons that came into his Chamber were Trespassors and one of them taking the sword in his hand how could it be known what mischief might have been done with it Cooks case 14 Caroli One may do a lawfull act by unlawfull means and although Buckner did ill yet is he not within the Statute Arthur Harris on the other side argued that the act was stabbing within the Statute and ousted the prisoner of his Clergy and that he is within the meaning and words of the Statute The Statute intended to prevent the killing of men suddenly which is the worst of all other killing for it is as it were to destroy not only the body but even to kill body and soul also and therefore though the Statute be penal yet it is not to be favourably interpreted it being made for the peace and quiet of the Nation The killing is the matter aimed at in the Statute and it matters not whether the party be killed with a Fancheon or a Pistol as Williams case was that killed another by throwing a Taylors Goose at him and he is not within the saving of the Statute though he was assaulted and the other stood with the sword in the scabbard in his hand 36 37 Eliz. Hanger and Molins case in the Exchequer Chamber The words of the Statute are not being first strook but an assault is not a striking and so he is out of the
NARRATIONES MODERNAE OR MODERN REPORTS Begun in the now UPPER BENCH COURT AT VVESTMINSTER In the beginning of Hillary Term 21 Caroli and continued to the end of Michaelmas Term 1655. as well on the Criminall as on the Pleas side Most of which time the late Lord Chief Justice Roll gave the Rule there With necessary Tables for the ready finding out and making use of the matters contained in the whole Book And an Addition of the Number Rolls to most of the remarkable Cases By William Style of the Inner Temple Esquire Ut singulis prosim opto precor Nam Genus et proavos quae non fecimus ipsi Vix ea nostra voco Ovid Metamorph. lib. 13. LONDON Printed by F.L. for W. Lee D. Pakeman G. Bedel and C. Adams and are to be sold at their shops in Fleetstreet 1658. To the Honourable IOHN PARKER One of the BARONS Of his Highness the LORD PROTECTORS COVRT OF THE Publique Exchequer SIR IN pursuance of what I not long since intimated in the close of the Epistle Dedicatory prefixed to my Practical Register and in hopes of as favourable an acceptance of this tender of my respectfull service as you then pleased to afford my weak endeavours am I now encouraged to make this my second humble adress Though this be but a yonger brother in respect of its time of production yet in reference to its first conception growth parts I may justly say it far excels the elder birth and is much more fit to do your Honour and the Publique service and may be I conceive capable of as large if not of a greater measure of your favour and protection I will not be troublesome to you in relating the pains time I have taken and spent in this Collection and Publication but shal leave it to your judicious consideration How great soever they have been I repent me not but am in my self abundantly satisfied and do think it reward enough that I have thereby gained this opportunity to shew my continuing humble respects to your Honour and my willingness to be some way serviceable to others whatever I have been to my self in that Vocation God hath of his goodness been pleased to place me in and to give an Accompt to the World a thing which I hold every good Christian is bound to do of the expence of my time It may be objected that the Press hath been very fertile in this our Age and hath brought forth many if not too many births of this nature I must confess this Truth but how legitimate most of them are let the Learned judge This I am sure of there is not a father alive to own many of them and they speak so plain in the Language of Ashdod Neh. 13. v. 23. that a knowing man cannot believe they ever sprung from Israelitish Parents but by their pronouncing of Siboleth insteed of Shiboleth Jud. 12. v. 5. may easily collect of what extract they are What I here present you with is though a Homely yet a lawfull Issue and I dare call it mine own and that I believe I may do with as good a right as any ever might a work of the like nature having had as little if not less assistance from others in the bringing it forth as any that have travelled in this kind before me I am not so blindly fond or so opiniastre as to think it free from Errors and Misprisions I fear there may too many be found in it and no wonder for Humanum est errare labi decipi yet this I do knowingly aver that I have not herein ex proposito or willingly injured any but have been as studious and carefull in the penning of this my Collection to do right to every person concerned and to make the Truth appear clearly in its native colours as was possible at a throngued Bar to do Nor have I been less wanting in my best endeavours to prevent and correct the Errors of the Press though I must acknowledge my pains and care are not herein fully answered that it might appear in publick though not in so rich a Dress as to be a Companion for the best yet at least be by your favour suffered to pass as tollerable amidst the crowd of a multitude of Editions cloathed in as ill if not in a worse and more unbeseeming habit Inner Temple May the 17th 1658. Sir I am yours most obliged respectively to serve you WILLIAM STYLE To the Industrious and Ingenuous Professors and Students of the Common Laws of England but more particularly and affectionately to the Associates of the honourable Society of the Inner Temple GENTLEMEN FOr a more noble Epithite I know not how to give you the greatest best of men on earth being in truth no more These ensuing Reports were at first briefly taken by me in the Law-french without any thought of making other use of them then for my one privat satisfaction And they did for some time after lye so confusedly scattered in my Note-books that as they then lay they were altogether uselesse to any but my self and that not without much expence of time and great trouble so that what of them my unhappy memory could not retain which was not much was in a manner lost as wel to my self as unto others to remedy this inconvenience if I may so call it of the losse of my constant attendance pains for so many years together taken at the now upper Bench Bar with very litle profit either to others or my self than some small improvement of my knowledge in the practical part of the law and in pursuance of that antient Moral Axiome Omne agens agit propter aliquem sinem I was encouraged to continue my travail and expence of time in the gathering together transcribing and putting of them into that order and method you now behold them yet as then not having any intent or desire to make them publique but only more readily usefull to my self and such of my Friends and Acquaintance as should at any time desire to be satisfied in any thing I was able to impart unto them But this not answering the expectation and importunities of some of my neer relations and many of my intimate Friends and Acquaintance nor knowing into whose hands my papers might fall nor how my self and others be injured in the publishing of them after my decease which I was uncertain when it might happen and did believe it could not be many years off by reason of my declining years but more especially in respect of the weak and crasy constitution of my Body much macerated by sharp and tedious sicknesses and being willing to leave some testimony behind me that I have not slighted or wholy neglected my calling but have ever had an honourable esteem of it though I have hitherto reaped but little of that benefit which too too many do so eagerly hunt after but have been doing something therein and have not lived
her true and natural complexion I need not say any thing in commendation of the Common Laws they do so sufficiently and clearly speak their own worth not only in our own land but even through the Christian if I may not say the whole known world The fruit that every one from him that sits on the Throne to her that grindeth at the Mill throughout this nation in the tender preservation of our Religion Lives Liberties and Properties do lowdly proclaim their excellency and do justly claim our reverent esteem of them and their sweet influence which our Neighbour Nations do partake of from their light and heat hath purchased an honourable name and repute amongst them Though no doubt but other Kingdomes and Republiques have many excellent written and established Laws sutable to the particular constitutions of the people and to their several frames of government and amongst the rest the Civil or imperial Laws yet they all want many remarkable excellencies that are in the Common Laws of England and the proceedings therein and amongst the rest to instance in no more they are very deficient in this way used in our Law for many ages past of reporting and leaving to posterity the learned arguments of councel at the Bar and of the grave and profound resolutions of the reverend Iudges in the decision of Cases arising and controverted amongst us and this way how sightly soever it be now esteemed of by many amongst us yet is by Strangers much valued and was heretofore so much set by amongst us and thought so highly advantageous to the publique that the wisdome of this State did then think fit to appoint grave and judicious men encouraged by an annual stipend to attend and perform this task and therefore I hope that he who hath undertaken this hard labour freely and voluntarily in relation to the publique good without hope of reward is so far from deserving blame and reproof that he is rather to be cherished and countenanced in these his endeavours by those in authority and not to be rashly and uncharitably calumnicated or censured by any but to be favourably interpreted and received as one that makes it his aim to be accompted a true lover of the Common Laws and really honoureth the profession and Professors thereof Inner Temple May the 19th 1658. William Style An Alphabetical TABLE OF THE NAMES OF THE CASES A SIr Maurice Abbots case Pag. 13 14 Abbot and Vaughan Pag. 450 Acton and Ayres Pag. 346 Adston and Hunter Pag. 206 Allen and Reeve Pag. 88 Allens Case Pag. 255 Allen and Holden Pag. 287 288 Andrews Case Pag. 9 Andrews and Baily Pag. 139 Count Arondels Case Pag. 26 Count Arondel Shandois case Pag. 371 372 Archer and Holbidg Pag. 185 Arnold and Floyd Pag. 473 476 Sir Anthony Ashly Cooper and St. John vid. C Ashby and Child Pag. 384 Ashworth and Sir Tho. Stanley Pag. 364 Askwiths case Pag. 362 Atwood and Monger Pag. 378 379 Atlee and the Lady Baltinglass Pag. 475 Avery and Kirton Pag. 175 176 Aylet and Stellam Pag. 100 Aylet and Oates Pag. 121 125 Ailet and Watless Pag. 246 Ayre and Sills Pag. 131 Ayre and Pimcomb Pag. 164 Ayre and Hawksworth Pag. 382 B BAcon and Ramsey Pag. 460 Barnaby and Goodale Pag. 1 2 Basely and Basely Pag. 16 Barker and Martyn Pag. 19 37 Barly and Martyn Pag. 20 Barrets case Pag. 23 Baker and Edmonds Pag. 62 63 Banister and Wright Pag. 137 Barlyes case Baker and Denham Pag. 145 146 Barber and Pomeroy Pag. 175 Barnewell and Grant Pag. 190 Bambury and Basely Pag. 160 161 180 181 182 195 196 197. Barmeston and Gale Pag. 213 Bernard and Levit Pag. 227 Barcock and Tompson Pag. 281 288 323 324 Batisford and Yates Pag. 195 Batchellour and Parsons Pag. 292 293 Baker and Smith Pag. 295 303 304 Barnard and King Pag. 306 307 Bainton and Cheeke Pag. 353 354 355 Baker and Andrews Pag. 357 358 Barjar and Windham Pag. 385 Barker and Elmer Pag. 412 Banisters case Pag. 405 Baxters case Pag. 35 Bankes and Pratt Pag. 420 421 428 Barker and Weston Pag. 425 Baker and Ramsey Betsworth and Betsworth Pag. 10 Beal and Wyman Pag. 240 Benskin and Herrick Pag. 388 Bennet and the Hundred of Hartford Pag. 233 Bedwell and Fenwick Pag. 393 394 Bigford and Topsam Pag. 209 Bird and Christopher Pag. 389 Bishop and Fitzherbert Pag. 298 Boomer and Pate Pag. 32 Boone and Sheeres Pag. 79 Bowes and Broadhead Pag. 155 Bolton and Wills Pag. 214 Bowles and Clark Pag. 228 Boomer and Cleve Pag. 231 Bois and Cranfield Pag. 239 Booth and Lambert Pag. 276 277 Bowyer and Tantulyar Pag. 155 Boyle and Scarborow Pag. 395 396 440 441 442 443 444 Bocking and Symons Pag. 400 Bond and Martyn Pag. 353 Sir William Bronkers case Pag. 16 Burnet and Bird Pag. 54 Burwell and Lancaster Pag. 109 Burges and Dinham Pag. 114 115 Butler and Long Pag. 117 Burraston and Herbert Pag. 155 Burton and Low Pag. 212 213 233 Buckston and Shurlock Pag. 340 Busfield and Norden Pag. 471 Burrel and Lancastre Pag. 109 Burcher and Orchard Pag. 349 350 Bunnyworth and Gibbs Pag. 419 Blackwell and Ashton Pag. 50 Blackden and Harvey Pag. 220 Bronge and More Pag. 428 Broome and Evering Pag. 8 Sergeant Bradshaw and Procter Pag. 464 Bruer and Southwell Pag. 27 58 63 Brooke and Brooke Pag. 61 Brereton and Monington Pag. 115 Bragg and Nitingall Pag. 140 141 Browne and Poynes Pag. 147 Brook and Hogg Pag. 164 165 Brooke and Brooke Pag. 170 171 Brungy and Lee Pag. 178 Bryan and Stone Pag. 239 Browne and Nelson Pag. 317 318 Bryan and Twite Pag. 328 Brock and Vernon Pag. 339 340 Brightwell and Robson Pag. 368 369 Bromefield and Williamson Pag. 407 408 Bynion and Trotter Pag. 231 Byron and Stonehowse Pag. 328 329 C CApell and Alleyne Pag. 49 Carver and Pierce Pag. 66 73 Castle and Dynely Pag. 92 93 Cages case Pag. 129 Cave and Oseby Pag. 156 Carew and Bawd Pag. 167 168 Cane and Golding Pag. 169 170 176 177 Cater and Startuâ—e Pag. 217 Cane and Pell Pag. 229 Cage and Dod Pag. 233 234 Cantrell and Stephens Pag. 300 Sir Charls Coot and Plunket Pag. 125 Cook and Fincham Pag. 18 Cooke and Alleyne Pag. 20 Conesby and Fairefax Pag. 23 24 Colson and Bedloe Pag. 58 Cornish and Cowsye Pag. 118 119 Collins and Page Pag. 124 125 Coles and Sibsey Pag. 156 178 Compton and Alleyne Pag. 162 Coswells case Pag. 182 Colson and Rea Pag. 195 Cooke and More Pag. 195 Sir Anthony Ashley Cooper and St. John Pag. 130 131 Cowlye and Lockton Pag. 205 Coleman and Blunden Pag. 255 Collyns and Syllye Pag. 265 Cotterel and Theoballs Pag. 297 298 313 314 Comport and Beech Pag. 214 Cooks and Chambers Pag. 439 440 Conye and Lawes Pag. 472 473 Curtice and Columbine Pag. 19 20 Cutsworths case Pag. 153 154 Custodes and Outwell Newton and Tyd Pag. 178 179 180 184 185 191 192 Custodes and Montague and Lydall
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
Court held that the pleading of a bargain and sale to be debito modo irrotulatum secundum formam statuti is good enough Opinion of the Court touching pleading of an Enrollment though it be not pleaded to be inrolled within six months yet ruled it should be moved again The same term Iudgement was given that the Plaintiff nil capiat per billam because the Deed was not said to be enrolled neither secundum formam statuti nor within six months but only debito modo which may be an Enrollment at the Common law and not according to the Statute The City of London and Estwick Trin. 23 Car. Banc. Reg. THe Court was again moved in the Case between the City of London and Estwick Argument concerning the Writ of Restitution to a common-Councel-mans place Amendment that the return of the City might be amended although it were filed because there are Presidents where it hath been done Roll Iustice answered there was never any amended after the filing before H. 7ths time It was replyed by the Councel that the return being of this Term it might be amended for it rested in the breast of the Iudges But Roll Iustice answered to this that Acts of the Court remain in the breast of the Court the same Term but not acts of others and therfore this being so was not amendable and said that inferiour Courts cannot amend a presentment in matter of fact for that were to alter the custom of the courts and it was then said that Endictments had been amended after the filing of them And Alderman Langhams Case was also urged where a retorn of the City was amended after it was filed yet this was ruled not amendable Twisden of Councel with the City argued that Estwick ought not to be restored to his place of a Common-Councel-man for these reasons 1. Because it was not a place of profit and so it was no damage to him to be removed and therefore his sute was to no purpose 2ly It is not a place of Government and so no dignity in it but it was a place meerly of service and trouble But Roll Iustice answered that a writ of restitution had been adjudged good to restore a Constable to his place Restitution which was more a place of service and trouble than this 3ly There is a judgement against Estwick in a Court of Record and it must be avoided either by error or attaint as the Statute directs and the partie cannot be restored by a Writ of Restitution and for the objection that the Return is too general he answered that Faith is to be given that there was a disturbance made by him as is suggested though it be not so plainly expressed as it might have been 2ly Here appears a contempt to the Court and for this he may be suspended 3ly The Custome is well pursued upon the whole matter taken together 4ly The Custome is well laid for the commitment ad placitum for it refers to the words suspendere vel amovere that is either one or the other 5ly The word require amounts to a command being spoken in a Court of Record and the disobeying it was a contempt Hales of Council on the same side argued much as Twisden had done and added to it as followeh 1. That there appears a reasoanble cause precedent why he should be suspended and then it follows they may suspend him ad libitum 2ly The alleging of the disturbance is not material for that is not the ground of his a motion from his place but only the inducement to it 3ly Requisitus shall be understood requisitus per curiam it being alleged to be in Court 4ly Recusavit is more than denegavit and implies he did not the thing enjoyned him and so might well be committed 5ly There may be cause to grant a Writ of restitution though no cause for the restitution For a common-Councel-man of Coventry had a Writ of restitution out of this Court and yet upon his sute was not restored The Recorder moved for a longer day to be heard for the City because it was a weighty cause and said that no restitution could be made for the Writ was not well directed and so is not well executed The Plaintiffs Councel desired expedition in the Cause Whereupon Roll said here hath been no delay in the business but the rule is against you and he took these exceptions to the Retorn 1. It appears not by the retorn that the Plaintiff is removed from his place but only that he is suspended and then he may well be restored and it is not said for how long time he is suspended 2ly It is not said that he is suspended for a reasonable cause 3ly It is not said what the disturbance was that he made for which he is suspended And further said that the Court of the Common-Councel is not a Court of Record Error Restitution for no Writ of Error lies there but is a Court only of Advise Bacon Iustice as Roll and said that Estwick had only remedy to be restored by a Writ of Restitution and not by a Writ of Error or an Attaint Adjourned till Saturday to hear Councel for the City Rawson and Bargue Trin. 23 Car. Banc. Reg. Hil. 17 Car. rot 904. RAwson brought an Action of Debt against Bargue for 15 l. upon the Statute of 2 Ed. 6. for setting forth of Tithes Argument upon a special Verdict for Tithes in an action of Debt upon the Statute of 2 Ed. 6. And upon the Tryal a special verdict was found wherein the Question was whether the Church by reason whereof the Tithes were claimed were a free Chappel and given to Ed. the 6th by the Statute of 1 Ed. 6. and so discharged of Tithes or not VValker of Councel with the Plaintiff argued that it was not a free Chappel because there was a cure of Souls and so could not be free but presentative and said that the word free was a word of distinction to distinguish things of different nature one from another as liber homo is to distinguish a free maa from a villein Francksold Francktenement and the like and cited Bracton lib. 4. C. 3. 241. He likewise distinguished Chappels into three sorts 1. Donative 2ly Presentative 3ly Without cure of Souls and said that Chappels presentative were not given to the King by the Statute of â— Ed. 6. and cited Nat. brev 48. and 13 E. 4. f. â— and 6 H. 7. c. 14. and 5 H. 7. f. 37. and said that it is not within the meaning of the Statute of 1 Ed. 6. to give Chappels presentative because it is not within the mischief which the Statute was made to prevent and so intends not to give Chappels with cure of Souls and the word free is but nominal and doth not make it free if it be not so otherwise Hales for the Defendant argued that it was a free Chappell within the Statute of 1 Ed. 6. For first it is called
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
an Executor Devastavit for the Devastavit of the first Executor Roll Iustice the Ecclesiastical-law ought to make a provision against these mischiefs Prohibition otherwise a Prohibition lyes against them Appointed to be argued a gain Tuesday sevennight VVatson and VVatson Mich. 23 Car. Banc. Reg. Hiill 22 Car. rot 1687. VVAtson brought an Action of Debt upon an Obligation against Watson Arest of Judgment in Debt upon an Obligation to stand to an award Award the Condition was to stand to the Award of two Arbitrators or of the Vmpire The Defendant pleads nullum Arbitrium The Plaintiff replies that the Vmpire made the Award The Defendant demurs and shews for cause that the Award was not good for it was incertain and not final on both parts for one party was awarded to pay so much mony to the other as in conscience should be due and no man can say what that is The Court said the Award was insensible And Bacon Iustice said it was a Vicars Award Puliston of Councel with the Plaintiff cited these Books to prove the Award good 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc 4 Iac. Gosnolls case 9 H. 7. and said these cases proved that where an incertainty in an Award may be made certain there the Award is good and so it is in our Case 2ly He said that the Award here is good notwithstanding it be to pay so much mony as shall be due in Conscience Conscience for it shall be meant as is due in Law for Law and Conscience are one and the same But Roll Iustice said that the Award doth not make a finall determination of the matters in controversy betwéen the parties and so it is no Award And Bacon Iustice cited 5 Rep. That an Arbitriment ought to be certain and final and this Award wants both these properties and therefore is not good Fitchet against Wolston Mich. 23 Car. FItchet had a Iudgement against I. S. in an action of Debt Demurrer to a Plea upon a Scire facias against an Administrator Scire facias with a Fieri facias I. S. dies intestate Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator and to take them in execution upon the Iudgement Wolston the Defendant appears to the Scire facias and pleads fully administred The Plaintiff demurs to this Plea and shews for cause that in this Case he should have pleaded non Devastavit and not fully administred 2ly The plea answers not the Writ The Court answered all such processes are only to make the Executors or Administrators to answer Fully administred and therefore fully administred is a good Plea for it is a good answer and it would be dangerous to plead other waies And Roll Iustice said that this being a Scire facias with a Fieri facias according to the new manner of making the Writ it would be dangerous to plead non Devastavit and it hath been adjudged a good plea Non Devastavit to say fully administred in a Scire facias against an Executor but it is better to plead nulla bona devenerunt ad manus Nulla bona with which he could satisfie the Debt since the Scire facias brought But this being a new case it is fit to be argued Therefore let us have Books Finer and Jeffry Mich. 23 Car. Banc. Reg. FIner brings an Action upon the Case against Jeffry and declares Arrest of Iudgement in an Assumpsit that the Defendant did assume and promise unto him that if he would forbear to sue one who had assaulted him and beaten him that he the Defendant would pay the Plaintiff as much mony as he was damnified by the Assault and Battery The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause Consideration 1. That it doth not appear by the Declaration that the Plaintiff had any intention to sue the party for the Assault and Battery and so the Assumpsit in consideration that he would forbear to sue for it is no consideration 2ly He doth not set forth that he gave any notice to the Defendant Notice what dammage◠he had sustained by the Battery But the Court held that the Plaintiff néeded not to allege that he had an intent to sue the party for that the Defendant took notice of when the Assumpsit was made and for the notice what dammages the Plaintiff had sustained the request to perform the Assumpsit implies that sufficiently and so gave judgement for the Plaintiff Dersly and Dersly Mich. 23 Car. Banc. Reg. THree are endicted of Conspiracy and forgerg Arrest of Iudgement upon an Endictment of Forgery and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement and offered these Exceptions 1. The endictment is for a joynt forgery and so one only cannot be guilty but if one be acquitted all must be acquitted 2ly The endictment is for forgery and causing to forge which are two several and different Acts. But to these the Court said nothing But took another Exception namely Conspiracy that the Conspiracy is not found upon which the Endictment is grounded according to the Statute for 2 are acquitted and so there cannot be a Conspiracy in the third person nor in any of them for one cannot conspire alone Bruer and Sowthwell Mich. 23 Car. Banc. Reg. IN this case it was moved again in arrest of Iudgement Arrest of Iudgement in an Action upon an Assumpsit Nudum pactum Consideration upon the exception formerly taken namely that the words in the Declaration discounting for four Months were uncertain and so there is no consideration for the Assumpsit and then it is but nudum pactum Roll Iustice said the Declaration is insufficient for the incertainty for it cannot be known what is meant by the word discounting Yet he said that though part of the Consideration upon which the Assumpsit is grounded be against Law yet if the other part be good and it may be divided the Assumpsit is good notwithstanding Yet we will hear Councel on both parts before the Plaintiff shall have Iudgement Colson and Bedloe Mich. 23 Car. Banc. Reg. Entred Mich. 22 Car. rot 434. COlson brought an Action upon the Case upon an Assumpsit against Bedlore Arrest of Iudgment in an action upon the Case upon an Assumsit and declares that in consideration of so much monys paid by the Plaintiff to the Defendant the Defendant did assume and promise to deliver so many loads of Hay unto him at such a place and for not performing his promise he brings his Action The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement upon these Exceptions 1. The Declaration doth not
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
and the Crown hath not granted this away 37 H. 8. and so not destroyed them Donatives usually passe as lay fees and the passing of them as lay fees alters not the nature of the Chapells and the Statute gives it to the King as the incumbent had it Lay fee. and there is a saving of the nature of it in the Statute It is objected that he hath not been presented ratione lapsus To this Hob. 337. in Greens Case gives an answer and Potters Case 9 Car. in the Common pleas and it is well found here in the verdict for the Plaintiff That it is not within the Statute Brown for the Defendant in his argument said the question is whether it be a free Chapel given by the Statute of 1 Ed. 6. and 1. It is within the words of the Statute and 2ly It is within the meaning of the Statute for the words they are simplicitur generalia and so large as can be and all Chapels are given by them and none excepted And here 1. The nature of a free Chapell is to be considered For Cowel he is not fit to be cited Cowelâ— Book for his book was condemned by Parliament and burnt as erroneous Divers sorts of Chapels and scandalous in 4 E. 3.28 Peeter Corbets Case a Chapel is part of a Church 8 H. 6.32.37 Bracton 241.17 Ed. 3.58.9 Ed. 3.11 these are not within the Statute of 1 Ed. 6. 2ly There is Capella parochialis which is subject to the jurisdiction of the Ordinary 14 E. 3. Fitz. quare impedit 183. Lynwood 142.8 Ed. 3 60. The book of entryes 542. Long quinto 26. 3ly A Chauntry is taken for a Chapel 4ly A free Chapel is nomen comprehensivum and comprehends much 13 Ass pl. 2.15 Ass pl. 8. The essential matter of a free Chapel is to be free from ordinary jurisdiction and not to be visited by the Ordinary and one comes regularly to a free Chapel by donation but being in he is free from ordinary jurisdiction 18 E. 3. Fitz. scire sac 11.17 E. 3. f. 45. Brook praemun 21. It hath been obiected that it is presentative and so it is not free I answer it may be free though it be presentative and so the verdict finds it to be in the foundation of it 2ly The Plaintiff brings the Action as Rector of a free Chapel and now he shall not be suffered to deny his own Declaration 3ly The admission institution and induction implyes jurisdiction till the contrary appear viz. that it is a free Chapel notwithstanding it be presentative 16 E. 3. Fitz. brief 660. None but the King can found a free Chapel and although it be free by prescription Foundation yet it shall be intended to be at first so founded Institut 44.9 H. 6. f. 17.20 E. 3.56 The King by foundation of a free Chapel may grant that it shall be presentative and yet when the party is in that it shall be free from the jurisdiction of the Ordinary Fitz. nat â—r 48. C. Iurisdiction The dean of Battel in Sussex is presentative to the Vicarage of Battel by the Bishop of Chichester but when he is in he is free from the jurisdiction of the Ordinary Davyes Rep. fo 72. Cooks instit 344. A lapse may incur of a free Chapel by the foundation of a thing may alter the law 7 E. 3. fo 18. The old book 316. The essential difference of a free Chapel from another is to be free and exempt from the jurisdiction of the Ordinary 17 E. 3. close roll in the Tower Seldens book of tithes 441. regist 40 41. Pasc 3. Jac. in this Court Fachell and Gaires Case There are divers writs in our books to discharge free Chapels from visitations and therefore it appears they are exempt from the Ordinaries jurisdiction But it is objected that the presentation makes it presentative though it were not so before This is answered 14 E. Fitz. 9 E. 3 â—â— 27 E. 3.34 It is not the presentation made by the party but the foundation that makes it presentative 2ly It is objected that it is parochial and therefore is not free I answer it is not so found although it be so claimed and though it be so claimed it makes nothing to the purpose The parish Church of St. Maryes in Shrewsbury was parochial and yet given to the King by this Statute 13 H. 4. Fitz. brev 807. Hil. 17. Iac. in this Court in Grubbam and Gales Case adjudged that a Chapel may be founded in a parish Church and such are given to the King Dyer 267. o Car. Pasc in the Common pleas Rawlins and Yaxlyes Case 2ly For the words of the Statute this is not one of the free Chapels excepted in the Statute and therefore it is within the Statute and there appears no visitation in the verdict found and exceptio in non exceptis format regulam For the meaning of the Stat. Interpretation Brook prebend 2 d. 10. rep 128. All parts of a Statute ought to stand together if it may be and one part of it ought not to destroy another part generale dictum generaliter est intelligendum The exceptions of the Statute shew the meaning of it It is objected that the being a free Chapel makes it not to be superstitious I answer if it be a free Chapel by Common intendment it is superstitious but though if it be not yet it is given by the name of a free Chapel By the verdict it was taken for a free Chapel and that it was seised into the Kings hands There is much light to be had in interpretation of laws by consulting with those that made them and to know how they had interpreted them for expositio contemporanea est optima Plow 466. Pasc 35 El. Clark and Mark in the Common pleas If it be not a free Chapel yet being found so it shall be taken to be so in reputation Reputation and enough to give it to the Crown And the presentation to it is ad rectoriam sive liberam capellam and so not certain and so it is not a good presentation Presentation because the King was not rightly enformed what it was he presented to Regist fol. 203. 19 E. 3 Fitz. quar imped 360. and so prayes Iudgement for the Plaintiff Roll Iustice There is a difference where a Chapell is founded within a Church and where the Chapel is Parochial Bacon Iustice held that it was given to the King by the Statute for it is found to be a Chapel paying tenthes and this Statute looks backward to the Statute of 37 H. 8. and to things in being and the Chapel was within that Statute and by it he might have seised it and it is within the words and intent also of the Statute of 1 Ed. 6. and the proviso of the Statute shews the meaning of it and Capellae dependentes or Chapels of ease are not given by the Statute Roll Iustice to the same effect and said
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
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
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.
and damages are assessed and said It is true that the judgement is right entred but there is no Verdict to warrant the Iudgement and therefore it cannot be good and therefore let it be reversed if cause be not shewn to the contrary But we will not pronounce it now except the party desire it for his own expedition Ayre against Pyncomb Mich. 1649. Banc. sup AYre brought an Action upon the Case against Pymcomb for surcharging of a Common and for treading the Grass Arrest of Iudgement in an Action upon the case for surcharging a Common Assize Trespass upon the case The Plaintif had a Verdict The Defendant moved in Arrest of Iudgement That an Action of the Case doth not lie in this case but an Assize 2ly That an Action of Trespass doth not lie for a Commoner for treading of the Grass 3ly The Trespass is alleged to be done in quibusdam peciis pasturae and the quantity of them is not shewed To the first Exception Roll chief Iustice answered That the Plaintif may have an Assize or an Action upon the Case at his election although here be a disturbance of the Plaintifs freehold although that the antient books say the contrary And thereupon the Court gave Iudgement for the Plaintif except cause shewn to the contrary Brook against Hogg Mich. 1649. Banc. sup Hill 24 Car. rot 660. A Iudgement given in an Action of Debt upon an account in the Court of Knaresborough was reversed here Iudgement in an accompt reversed for Error in it because the Venire facias was Venire facias c. which in an Inferiour Court is not good Venire but it ought to say Venire facias duodecem probos et legales homines de c. so express all at large in words and not with an c. Note Many Iudgements given in Inferiour Courts have been here reversed upon the same exception But I only mention this for an authority to be cited upon occasion Ibson against Beale Mich. 1649. Banc. sup Hill 24 Car. rot 625. IBson brought a Writ of Error to reverse a Iudgement given against him for Beale in the Court at York in an Action of Debt upon an Obligation Error to reverse a Iudgement in debt and assigned for Errors 1. That the party hath not entituled himself to the Action 2ly The issue is not well joyned for the Plaintif saith ideo ponit se super patriam where he ought to say Issue petit quod inquiratur per patriam 3ly He concludes to his damage of l. 1. i. fifty pounds expressed in numerical Letters viz. l. for fifty and L. for pounds Damage instead of quinquaginti librarum The Iudgement was reversed upon the last Exception Stubs and Manklyn Mich. 1649. Banc. sup A Writ of Error was brought to reverse a Iudgement given in the Court at Owse-bridge in York Error to reverse a Iudgement in debt in an Action of Debt upon an Obligation and the Common Error only assigned But Roll chief Iustice upon Oyer of the Record took this exception That the Record was ideo praeceptum est Vicecomiti and it is not said in Curia and so it doth not appear to be the Process of the Court And for this Error the Iudgement was reversed Venire Topladye against Stalye Mich. 2649 Banc. sup Mich. 24 Car. rot 596. TOpladye brought an Action of Trespass quare clausum fregit pedibus ambulando c. against Stalye Demtirrer and argument upon a plea in Trespass The Defendant makes a special justification That he did enter into the Plaintifs Close to search for Shéep that were stollen from him To this Plea the Plaintif demurr'd and for cause shews that the justification is not good for it is not said by the Defendant that the Plaintif had stollen the Shéep or that he had any suspition that he had stollen them or that any other had stollen them driven them upon the Plaintifs land and so had no colour to come there to search for them and the Books of 17 E. 4. f. 1. and 27 H. 8.23 6 E. 4.7 21 H. 7. f. 10. 22 H. 6. f. 36. 38 E. 3. f. 10. were cited Iustification Another exception was also taken That the Defendant doth not say that the Gate of the Close where he entred was open and though he may justifie to search for his Shéep in the Close yet he cannot justifie the breaking of his Close to doe it But Roll chief Iustice over-ruled this exception And for the matter in Law whether the Defendant had made a good justification or no. He held that he had not for all that he hath alleged by way of Iustification is but matter of private profit to himself Distress Damage feasant and not for the publique good for he went not thither to find or apprehend the Felon but to look for his Shéep And if Cattel be stollen and put into my ground I may take them damage feasant or bring an Action of Trespass against the owner and the owner cannot take them away without the license of the possessor of the ground Licence for if he might by that means the possessor of the ground would be without remedy for the damage the Cattel had done him And he said That when one hath suspition of another for felony he ought to shew the cause of his suspition Arrest otherwise the party suspected ought not to be arrested upon it and concluded that the Plaintif ought to have Iudgement Ierman Justice held that the Defendant ought to have Iudgement because a private injury as this Trespass is ought to give way to the publique good viz. the discovery of Felony and here is a publique good intended and it ought to take place of the Plaintifs inconsiderable injury And he said that one may be arrested for Felony only upon Common fame if there be a felony committed Otherwise it is if there be no Felony done Ask Justice said the Case was hard on both sides But the Court gave Iudgement for the Plaintif except cause should be shewn to the contrary Mich. 1649. Banc. sup VVIld moved the Court that the retorn of a Habeas Corpus granted for certain rioters called the Diggers that were committed by Iustices of Peace upon finding the Riot upon their view might be filed To quash a Retorn of a Rescous which was granted upon which he moved that the prisoners might be discharged but the Court commanded the retorn to be read upon the reading of it Wild took this exception viz. That the prisoners were committed contrary to the Statute of H. 4. c. 7. for by that Statute the Sherif ought to be present at the finding of the Riot which was not so here Walker held that the Iustices had power by the Statute without the Sherif to enquire of the Riot and to commit the Rioters But Roll chief Iustice said that there is no enquiry made in this
with the Plaintif wherein the Action being an Action of Trespass for taking away wheat rye and wood upon an Elegit taken out against a Parson The Question was Whether Tithes are extendible upon an Elegit by the Statute or not And he held that they are not extendible first by the Common law confirmed by Mag. Charta they are not extendible Extent Cook upon Magna Charta 37 N. Brev. 227. Tithes are méerly Spiritual things and exempt from all Lay consideration 11 Rep. 14. Pridle and Nappers case Cawdries case 5 Rep. f. 15.35 H. 6.39 where rights of Tithes are in dispute the Common Law shall take place but not where the Tithes themselves are in dispute Seldens History of Tithes cap. 14. 2ly The Statute of Westminster makes no alteration of the Common law in this point and non usage is a good argument to prove it for if they had béen extendible it would sometime or other have been put in practice and by the express words of the Statute of Westminster the 2d Tithes are excepted and the process usually before that directed to the Bishop for sequestration is not taken away by the Statute of 5 Ed. 3.53 N. Brev. 66. Though it be a freehold yet is it not within the Statute and if it be within the words of the Statute yet is it not within the meaning of it as Cook upon the Stat. of Wesim 2. doth prove 35 H. 5.50 9 E. 2. Clergy men antiently were not included in general Acts of Parliaments because the Church was accompted as an Infant alwayes within age Clergy and so favoured and protected by Law Next the late Ordinance of Parliament hath made no alteration in this case for the Ordinance intended not to punish the Parsons of Churches although it doe out Bishops of their Bishopricks and dignities And as to the Objection That if the Tithes should not be here extendible there would be a failer of justice I answer That our case is out of the Common law upon which the rule that extraordinary courses are to be taken rather than there should be a failer of Iustice is grounded Roll chief Iustice said that there are two Questions in this case 1. Whether Tithes are within the Statute 2ly Whether now that Bishops are taken away by the Parliament the Sherifs may levy the debt of the Clergy as the Bishops used to doe and I conceive they may Levari by a levari facias But the great question is Whether the Elegit lye And the Court inclined it did But you will argue it again therefore we will deliver no opinion in it Elegit And the Court clearly held with Mr. Selden That Tithes are not due jure divino and directed to search presidents Tithes if a Recognisance had ever been extended upon Tithes Cane against Golding Mich. 1649. Banc. sup CAne brought an Action upon the case against Golding for slandring his title by speaking these words viz. His right and title thereunto is naught Arrest of Judgement in an action upon the case for slandering the Plaintifs title and I have a better title than he The Plaintif had a verdict The Defendant moved in Arrest of Iudgement that the words were not actionable Twisden of Councel with the Plaintif argued that the words are actionable for though the words spoken of themselves may not be actionable yet here they are alleged to be spoken falso et malitiose and that will make them actionable 43 B. 3. f. 33. N. Br. 95. Hob. Rep. Water and Freemans Case and as to the Objection that is made that the Declaration is only quod fuit verisimilis vendere and that he was hindered by the words and therefore there might have béen no bargain made though the words had not been spoken The answer is That it is well enough set forth as it is for all treaties upon Contracts are but likely to procéed and are not certain till the Contracts be made but which is more it is further alleged here that by reason of the speaking of these words he could not receive his Tithes which is an express loss Hales for the Defendant argued that the words of themselves are not actionable although they be said to be spoken falso et malitiose except a special damage be alleged to come to the party for such words as these differ from words that are spoken of the person of a man And though there be damage yet they are not scandalous for the Defendant claims a title as well as the Plaintif and the saying that the words were spoken falso malitiose doth not make them to be so spoken nor makes them actionable if they be not so in themselves Roll chief Iustice said there ought to be a scandal and a particular damage set forth but it is not so here But move it again Saturday next Postea White against Holford Mich. 1649. Banc. sup Trin. 1649. rot 1214. A Writ of Error was brought upon a Iudgement given in an Action of Debt upon an Obligation to stand to an Award and the Error assigned was Error to reverse a judgement in Debt upon an Obligation that the Arbitrement exceeded the submission for the submission was to stand to the award touching all matters in difference between the parties and the award was that the parties shall make general releases each to other of all demands and the word demands is a word of a larger signification than the word differences Award But Roll chief Iustice answered That if the release be more large in words yet it is good enough for it shall be intended only of all matters in debate between the parties and if there be other matters you ought to have shewn them in pleading otherwise the Court will not intend there are any to which the other Iudges agreed and gave judgement for the Plaintif except better matter should be shewn Brooke against Brooke Mich. 1649. Banc. sup Mich. 24 Car. rot 287. BRook brought an action of trespass quare clausum fregit for eating of his grass with Cattel Error to reverse a judgement in trespass quare clausum fregit c. against Brooke Vpon Not guilty pleaded an issue was joyned and the Plaintif had a verdict and a judgement The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error that the Declaration was incertain For the Plaintif declares of breaking his Close and eating his grass cum quibusdam averiis and doth not say what Cattel and so he may recover damages in this action and bring another action for the same trespass because it cannot be known what Cattel did the former trespass Barr. Averment Hales of Councel with the Defendant said the Declaration was good enough for it is good in substance although it might have been better in form and it being after a verdict the incertainty is helped And the Defendant if the Plaintif should bring a new action for
Ridley and Emerson 1649. Banc. sup Pasch 24 Car. rot 400. THe case between Ridley and Emerson was again spoken unto Argument in a writ of Error to reverse a Iudgement in debt upon an Obligation It was in a writ of Error to reverse a Iudgement given in an Action of debt upon an Obligation in the Common Pleas. The Condition of the Obligation was that the Defendant should not put cattel upon a Common viz. Ransom Moor before the proof and tryal of the title of the Common were had The Defendant pleaded that he did not put in his Cattel The Plaintif replied that the Defendant did put three Mares there before the proof or tryal An exception was taken that there is variance between the Replication and Rejoynder and the Condition of the Obligation Variance and so it is not good Twisden of Councel on the other side held that it was good enough notwithstanding because it is after a verdict and there is a good issue joyned Holhead on the Contrary held it ill 1. Because the Replication doth not assign a breach of the Condition of the Obligation 2ly It is said in the Condition he shall not put Cattel into our Common and the Replication is that he did put cattel into such a Common naming it and doth not shew where the Common lies 3ly There is variance between the Declaration and the writ of error 4ly There is a name mistaken for in one place it is Matheum and in another it is Mathiae The Court bid them advise and bring Books to the Iudges Brungy against Lee. Mich. 1649. Banc. sup Trin. 1649. rot 1491. BRungy brought an Action of Trespass against Lee Demurrer upon a Plea in Trespass for taking of a Mare and impounding her till the Plaintif had payed 10 l. The Defendant pleaded by way of Iustification that he did distrain her by virtue of an order made by Commissioners of Sewers for a tax assessed by them upon the Plaintif The Plaintif demurred to this Plea and shewed for cause 1. That it doth not appear that the Commissioners who imposed the Tax had authority to do it for it ought to be done by six of them and it doth not appear here that they were more in number than four 2ly It doth not appear that they were all of them of the Quorum as they ought to be Plea 3ly There doth not appear to be any fault in the Plaintif why he should be taxed 4ly The number of the Acres of Land doth not appear upon which the Tax was layd 5ly It doth not appear that the Land taxed did lye within the Iurisdiction of the Commissioners Upon these Exceptions the Plea was over-ruled Coles against Sibsye Mich. 1649. Banc. sup COles brought an Action of Trover and Conversion against Sibsye Demurrer upon a replication in Trover and Conversion The Defendant pleads the Statute of Limitation of Actions in Bar. The Plaintif replyed that he took out a Latitat such a Term against the Defendant for this cause now depending which was within the time limited by the Statute To this replication the Defendant demurred and for cause shewed that it was incertain and so no issue can be joyned upon it for it only says that he took out a Latitat such a Term and doth not shew what day of the Term he took it out and so we cannot take issue upon it and the usual form is to shew the day Latch maintained the replication and said it was good in matter of substance and the Latitat shall be intended to issue forth the first day of the Term Term. for all the Term is but one day in construction of the Law and the Defendant may take a certain issue as it is pleaded Roll chief Iustice answered you ought to have shewed the teste of the Latitat Time for the time is material in this Case viz. to know whether it were sued forth within the time expressed in the Statute for the limitation of Actions or without namely within six years or no and you might have made it certain by your pleading it specially Ierman differed in opinion and thereupon the Court took time to advise Vid. antea Custodes c. against the Inhabitants of Owtwell Tyd Newton c. 1649. Banc. sup VPon a Retorn read of certain orders made by Commissioners of Sewers For exceptions and answers to them upon a retorn of Commissioners of Sewers against the Inhabitants of Outwell removed hither by the said Inhabitants by a Certiorari These exceptions were taken 1. There doth not appear to be any adjournment of the Commission Adjournment But to this the Court answered that it needed not Hales said that the charge of reparation of a breach in Sea-walls which happens by inevitable necessity ought to be repaired by the whole Level and not by any particular Vill or person And 2ly the charge ought to be laid indifferently but here is a particular Custome of which the Commissioners of Sewers may take notice and therefore the Commissioners are not compell'd to lay the tax equally upon the Lands within the Vill for the Custome may be to the contrary and yet have a reasonable construction Custome and this is the Custome of Marshland for the spéedy repair of breaches to prevent publique danger and afterwards the tax is equally distributed upon the Vills adjacent And an implication in a Retorn made by Commissioners of Sewers is good enough Retorn Maynard on the other side held that the Custome was well set forth for the general charge for the present necessity and afterwards the particular Inhabitants charged shall have remedy against the other Inhabitants to make them contribute as it was in Doctor Lambs Case that was flain in an Vproar in London where the City was fined generally but the Citizens afterwards contributed to the payment of it for all are lyable to the charge by the Common law and it may be also by the prescription 10 Ed. 3. f. 8 9. The Court reproved the Councel and said you ought not to argue two of you at one time on the same side except it be upon conclusion of the arguments at Bar in the cause Roll chief Iustice said the tax ought to be particular but it is not to be laid upon the Township if there be not a Custome for it and such a Custome may be reasonable and it is dangerous to destroy it for fear of the publique danger that may arise by doing it Retorn And for the retorn of the Commissioners it is not necessary it should be so strict as our pleadings are The Court gave Twisden time till that day seven night to be heard on the other side At which time to the exception that was taken that it appears not that Lynn Regis is within the limits of the Commission by virtue of which the tax is made It was answered that it doth appear To the second exception taken that here
himself and 2ly for a Contempt to the Court and because he would not find ball and it appears that the warrant for his commitment is not good for he is not committed for matter arising upon the Sea and so they have no Iurisdiction But the Court bid them proceed upon their prohibition Bail for they would not release the prisoner But if you will you may move it again Friday next Gilbert against Marden Mich. 1649. Banc. sup Trin. 1649. rot 942. A Writ of Error was brought to remove a judgement given in the Common pleas in an Action upon the case Vpon opening the record Error upon a judgement in the Common Pleas. Twisden took exception that the record was not removed for the Iudgement in the Common pleas was given Coram Petro Phesant and the writ of Error was to rectifie a record quod coram vobis reside The Court abated the writ of Error for this exception Abatement Smith against Andrews Mich. 1649. Banc. sup ANdrews an Attorney brought an Action upon the case against Smith Arrest of Judgement in an action on the case for speaking of these words against him He meaning the Plaintif stirrs up men to sutes and promiseth that if he recover not for them he will take no fees and yet in a sute which he so undertook for me wherein I was overthrown he took Charges of me Vpon not guilty pleaded there was a verdict and a judgement for the Plaintif The Defendant brought a writ of Error and for cause it was shewed by Maynard that there are entire damages given for divers words spoken at one time whereof some are Actionable and others not which ought not to be and 2ly The words in themselves are not actionable for an Attorney may stir up men to sutes if their sutes be lawful which Roll chief Iustice denyed 17 Car. Gibson and Baxter Maintenance And he said that an Attorney may prosecute his Clyents cause without seed and yet it is not maintenance Trin. 16 Car. Hill and Sands his Case Hales on the other side held that the words are Actionable for the words shall be taken in the worst sense and he also shews how he had stirred up sutes in an unlawful manner viz. by making of bargains with men at Markets Roll chief Iustice said that such words shall be taken mitiori sensu and this is a special maintenance for it is in the case of an Attorney and therefore lawfull but here are other words spoken to shew that he stirred up sutes unlawfully and the stirring up of sutes and making bargains to follow them is in it self unlawfull and great inconveniences doe grow by such manner of practising and all the words ought to be taken together and not dividedly for so you may make any words not actionable Ierman Iustice held the words were actionable because they are a great scandal and trenching to destroy the Plaintifs livelihood practice And said that Attorneys ought not to go to Markets to get practice the words spoken are to shew he is a stirrer up of sutes and to shew that he was a false dealer and the words shall be taken in the Common acception and not mitiori sensu Nicholas as Ierman and that the words taken together are actionable Ask Iustice to the same effect Whereupon Iudgement was affirmed except better matter should be shewn Monday next Johns against Leviston Mich. 1649. Banc. sup â—Ohns brought an Action of debt against Leviston upon an Assumpsit that the Defendant would enter into a judgement unto the Plaintif for so much monies as Sir Iohn Hall did owe unto the Plaintif if the Plaintif would take Common bail of him the Defendant Arrest of Judgement in an action upon an Assumpsit if Hall should dse before such a day and for not performing this promise the Action was brought upon non Assumpsit pleaded there was an issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement and shewed that it doth not appear that there was any notice given by the Plaintif to the Defendant how much mony was due to the Plaintif from Sir Iohn Hall as there ought to be Roll chief Iustice answered You did undertake to know at the time of the Assumpsit how much mony he did owe and notice is not necessary Notice and if it were he might have gone to Sir Iohn Hall to tell him and so it shall not only be intended to be in the knowledge of the Defendant himself but that he might have also knowledge of it by others Ierman Iustice doubted but Nicholas and Ask Iudges were of Rolls opinion and the Plaintif ordered to take his Iudgement if better matter were not shewen Custodes Libertat c. against the Inhabitants of Outwell Mich. 1649. Banc. sup THis Case was again moved Exceptions uâ—on an order of Commissioners of Sewers and answers to them wherein upon a presentment made to Commissioners of Sewers an order was made by them to reimburse the Dike-réeves for mony expended in repairing a Sea wall by laying a tax upon divers Vills amongst which Owtwell was one divers exceptions had been formerly taken to the presentment and order At this time it was 1. objected that the Commissioners cannot alter the usual custom for making the tax as they have here done and therefore their Order is not good It was answered that there is no custom here presented but if there be yet the tax cannot be laid generally upon the Vill but distributively for every one of the inhabitants have not an equal share of the land nor are all the lands of equal goodness And there is no custom for the Vill of Owtwell to approtion the tax so that they have no authority to doe it Windham on the same side said that there is no prescription or custom here found and so the tax ought to be ruled by the Common Law and other Towns ought thereby to be Contributory which receive benefit by the making of the bank and the Commissioners of Sewers have not here pursued the direction of the Statute of Sewers as they ought to doe And here the presentments upon which this order for the tax was grounded were made by three Iuries of several Hundreds and the breach to be repaired doth not appear to be within any of the Hundreds whence the Iuries come as the Statute doth direct neither is it shewed how the inhabitants are chargeable whether by tenure or custom or how else Holhead on the same side said It is not said how the lands are lyable to the tax 1. It is not shewed in what part of the Poe-Dike the breach hapned Maynard on the other side said that the Commission of enquiry finds by what default the breach happens but they cannot tell how many acres every one holds to charge them several and it may be intended that they hold joyntly and it shall be intended that the lands are lyable to
the tax by prescription and it is not necessary to shew in what place of the Poe-Dike the breach happened Roll chief Iustice said the prescription here is waived for you say that it was not an inevitable breach and so you are at the Common law and not upon a custom and then the tax ought to be equal and according to the number of the Acres and it is not so here And it appears not that the breach is within the Hundreds whence the Iury came and so they have no authority to enquire Hales said that there is a clause to help this for there is a power in the Commissioners to ease them that have wrong done to them Roll chief Iustice This will not help Tax for the tax ought to be well and equally laid according to the Statute viz. upon the number of the Acres and here it is laid upon the persons of the inhabitants Therefore make a new tax Archer against Holbidg Mich 1649. Banc. sup IN this case the Action being an Action brought upon the Statute of 1 R. 3. Cap. 3. and a verdict for the Plaintif Arrest of Iudgement in an action upon the Stat. of 1 R. 3. cap. 3. it was formerly moved in arrest of Iudgment that the Statute was misrecited whereupon it was ordered the Parliament Roll should be brought in Court which was now done and read and upon the reading it appeared that it was misrecited for the Statute was for suspition of felony and the Declaration was for felony Misrecital whereupon it being held by the Court to be misrecited in matter of substance whereupon the Action was grounded The Court ordered a nil capiat per billam Mich. 1649 Banc. super AN Indictment was found against one for a forcible entry The Defendant traverseth the Indictment For restitution upon an Indictment of forcible entry Restitution and enters his traverse pleads The Plaintif moved the Court upon a suggestion that there had been divers verdicts found for this land for the Plaintif that the Plaintif might have restitution But the Court would not grant restitution before the tryal because the Defendant had traversed and pleaded Mich. 1649 Banc. sup THe Court was moved to discharge the issues set upon the inhabitants of Bridgwater To discharge issues for not repairing the high way Quash for not repairing a High way and to quash the Indictment upon a Certificate that the way was repaired The Court answered that further process should be stayed and the issues discharged But we cannot discharge the Indictment if you have no exception to take against it Mich. 1649. Banc. sup THe Court was moved to quash an Indictment against a Baker for selling of bread under the Assise To quash an Indictment for selling bread under the Assise The exceptions were 1. That it doth not say what Assise whereas there be divers Assises of bread 2ly The Indictment doth not shew where he sold the bread not to whom Roll cheif Iustice said to the first exception It is good enough to say he sold the bread contra assisam although it say not what assise but upon the second exception the Indictment was quashed Earl Rivers against More Mich. 1649. Banc. sup THe Earl Rivers was taken by a Latitat and committed to the Marshalsea The Earl by his Councel pleaded his privilege of Peerage and prayed he might be set at large Privilege of Parliament pleased Roll chief Iustice asked How is the plea now amended for yesterday you pleaded in abatement of the writ and now you pray to be delidered upon a bare suggestion Wild of Councel with the Defendant held that a Capias doth now lye against an Earl for comes dicitur a Comitando-rege Capias cessante rege cessat comes And demurred to the plea for want of form Roll chief Iustice said That Earls and Barons are antient titles of the Realm But let him plead as he will stand to it and advise well of the plea before the Demurrer joyned for we can give leave to amend the plea. Amendment VVare against Chappell Mich. 1649. Banc. sup VVAre brought an Action of Debt for 500. against Chappel Demurrer to a plea in Covenant upon an Indenture of Covenants between them viz. That Ware should raise 500 Souldiers and bring them to such a port and that Chappel should find shipping and victuals for them to transport them to Gallicia and for not providing the shipping and victuals at the time appointed was the Action brought The Defendant pleaded that the Plaintif had not raised the Souldiers at that time and to this plea the Plaintif demurs Windham of Councel with the Plaintif held that the Defendant ought to have provided the shipping and victual against the time though the Souldiers were not raised for the not raising of the Souldiers can be only urged by way of mitigation of damages and not pleaded in discharge of the breach assigned Yard of Councel with the Defendant held the plea was good in barr of the Action for the Covenants of each part have relation one to the other and there is a condition precedent made by the words to find shipping for the Souldiers so that the Defendant was not to find shipping Precedent condition except the Plaintif raised the Souldiers neither is there any notice given us how many Souldiers he had raised Roll chief Iustice held that there was no condition precedent but that they are distinct and mutual covenants and that there may be several actions brought for them Notice and it is not necessary to give notice of the number of the men raised for the number is known to be 500. and the time for the shipping to be ready is also known by the Covenants and you have your remedy against him if he raise not the men as he hath against you for not providing the shipping Ierman and Nicholas Iustices held against Roll that there is a precedent condition Ask Iustice was of Roll the Chief Iustices opinion Nicholas changed his opinion and so judgment was given for the Plaintif except better matter were shewn Jenkinson against Porter Hill 1649. Banc. sup Pasch 1649. rot 237. THese Errors in the Record were assigned to reverse a judgement given in the Court at York in an Action of debt Error to reverse a Iudgement in debt 1. That the time of the Iudgement is in figures 2. The sum recovered is in figures 3ly Venire is not good for it is Venire facias duodecim c. which is not good with an c. in an inferiour Court 4ly It doth not appear that the cause of Action is infra jurisdictionem Curiae And for these errors the judgement was reversed nisi c. Weston against Plowden Hill 1649. Banc. sup Mich. 1649. rot 503. THis case formerly spoken to was again moved which was this in effect Plea in abatement after imparlance Weston brought an Action of debt against Plowden upon
there is no use here to result but the party is in by the Common Law To the 3 point if the use doth result yet the estate of Hamond hinders the bargain and sale for he is a wrong doer because that the fee being determined by his holding over he is a wrong doer but if not yet his Estate is paramount For the 4th he held that the bargain and sale is not good upon the consideration expressed because it is not made for monies paid nor secured to be paid 37 Eâ—z VVard and Lamberts case C. B. For the 5th point he held that it doth not enure as a Covenant to stand seized because here are no words of Coveliant Boyntons case Plow Coment 301. 2ly There are plain words to shew the intent of the party to be against it and also actions following thereupon Foxes Case â— Rep. 15 Car. Pitfield and Pierce Banc. reg 17 Eliz. Gallards case And whether the use ariseth or not it matters not if the use ariseth Lease Watson hath title if not Cumberland hath the estate and so it is an ill feofment and prays judgement for the Defendant Roll chief Iustice said there is a variance Variance and it cannot be the same lease yet it is a good lease to raise a use because the feoffor joyns in it Ierman Iustice to the same effect and he held that the words at and from are all one Nicholas Iustice doubted Use Roll chief Iustice said that it is a distinct lease but the party hath made such a lease and more and a feofment made habendum a die datus if the seisin be not made at the last instant of the day it is not good Feofment The Court ordered it should be argued again Tuesday sevennight following Postea Hill 1649. Banc. super VPon an Endictment preferred 22 Car. at the Assizes in Kent against one for engrossing Apples Arrest â—f Iudgement in an Action upon the Stat. against engâ—â—ssing Victual Pears and Cherries framed upon the Statute made against engrossers of Victuals the Defendant pleaded and was found guilty formerly judgement was arrested and the Councel heard Edward Iohnson of the Inner Temple prayed for Iudgement for the Keepers of the liberty notwithstanding what had been objected formerly and that upon these reasons 1. Because that Apples Pears and Cherries are Victuals within the Statute and that because the Statute is not to be abridged And the Statute of 2 Ed. 6. made concerning fruiterers expounds this Statute that Apples and Pears are Victuals for the Fruiterers are called sellers of Victuals and for Bois his case that is objected that Apples are not Victual it is not to be meant of all sorts of victual in a general acception and without doubt engrossing of them is engrossing at the Common Law 26 Eliz. Salt is no Victual per se nor is used as Victual in any Country yet it is there said to be Victual But Apples are Victual per se and Costermongers are called Victuallers by their Charters Roll chief Iustice said That 4 Iac. Apples were adjudged no Victuals and after upon a writ of Error this Iudgement was affirmed in the Exchequer Chamber and therefore that judgement is not to be lightly passed over and if they should be adjudged Victuals the trade of the Costerwongers would be destroyed and for Salt it is no Victual but a preservative of Victual and Hops was adjudged to be no Victual 20 Iac. upon a reference made to the Iudges Neither are Apples to be accompted Victual within the Statute Ierman Iustice differed and Nicholas Iustice held that Apples are Victual within the Statute because they are better than Fish Ask Iustice held that Apples are Victual but not within the Statute for a Statute cannot alter by reason of time but the Common Law may It was adjourned Barnwell against Graunt Hill 1649. Banc. sup Entred Trin. 1649. rot 791. THe Court was moved for their opinion in this cause whether the writ of Error did lie or not Error to reverse a judgement where some are found guilty and others acquirred Abatement Error It was said that a writ of Error is not like another writ for another writ may be abated for one person and stand good to another but if the writ of Error will not lie it is abated in all Hacker and Wotton Pasch 24 Car. rot 342. And Roll chief Iustice asked the Counsel what he could say to the Books of 2 Ed. 3. and 3 Ed. 3. Privies in Record may joyn in a writ of Error so is it here and an inconvenience may come to all the parties by this judgement although but some of the parites against whom the action was commenced are found guilty and others are acquitted and therefore they may all well joyn in the writ And therefore let the Iudgement be reversed if cause be not shewn Wednesday next to the contrary Roberts against Tucker Hill 1649. Banc. sup Pasch 18 Car. rot 116. A Writ of Error was brought to reverse a Iudgement given in the Court at Bridgewater in an Action of the Case upon an Assumpsit to pay such a sum of money at the Defendants return out of Ireland Error to reverse a judgement given in an action upon an Assumpsit The Court held that Bridgewater hath no power to enquire of a thing done beyond their jurisdiction and Ireland is out of their jurisdiction whence the party upon the Assumpsit was to return Jurisdiction Latch of Councel with the Defendant in the writ of Error said that the writ of Error is returned by the Mayor and Deputy Recorder and their Letters Patents give not power to have a Deputy Recorder Return and the writ of Error is directed Maiori Aldermannis et Recordatori quashed The Court ordered cause to be shewn why the Writ of Error should not be quashed Postea Poynes and Francis Hill 1649. Banc. sup Mich. 24 Car. rot 222. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Trespass Error to reverse a Iudgement in Trespass and the Error assigned was that in the postea there is no association to the Iustice of Assize expressed as ought to be Roll Chief Iustice answered this is the fault of the Clark of the Assize Therefore let him attend and shew cause why the Postea shall not be amended Amendment Hill 1649. Banc. sup THe Court was moved to quash an Endictment for a riotous entring into certain land and carrying away 4 loads of Hay To quash an Endictment for a riot The exception taken was that the Endictment saith asportavit duo Carâ—cat sceni instead of duo Charectat soeni Roll chief Iustice answered If the party be culpable for the entry into the land although he carried away no Hay yet the Endictment is good therefore plead non cul to all the Endictment and it may be if it prove not good in all
parts it will be naught in all Hill 1649. Banc. sup THe Case of the Vills of Newton and Tyd concerning the presentments made to the Comissioners of Sewers for the Hundred of Wisbitch For quashing presentments and Orders of Commissioners of Sewers and their order made thereupon was again spoken to Twisden against the presentment said That it is not a presentment by Iury as it ought to be by the Statute for the Iury have only power to enquire of things within the Hundred of Wisbitch and it doth not appear that Newton and Tyd are within that Hundred 2ly The substance of the presentment is not good for the Commissioners cannot order that Newton and Tyd which have no benefit by the repairing of the bank shall contribute to the reparations 18 E. 3. f. 22. 3ly They cannot order to make a new wall notwithstanding Callice his opinion in his reading upon the Statute of Seâ—â—ers 4ly The Tax is not well laid for it is not laid upon all the Lands within Newton and Tyd as it ought to be charged if any ought to be Holhead answered to this last exception that it does not appear there are more Lands in Tyd or Newton than are charged And Roll chief Iustice said that is well enough To the third exception Holhead said it is not wholly a new work and therefore they may order to make it To which Roll chief Iustice assented and said it was so notwithstanding the Case of the I le of Ely for that was for the making of a new work totally To the 2d Exception he read the words of the presentment by which it appears that because the adventurers had no Lands to be charged and it is found necessary to be repaired that therefore it is to be repaired by Newton and Tyd for the present necessity Maynard answered that they are not bound to repair for the Act of a Stranger Taxes Roll chief Iustice answered Newton Tyd may take there remedyes against the strange adventurers and it seems there was a present necessity to repair it for publique safety If one be bound by prescription to repair a wall yet to prevent the present and publique danger the Commissioners may tax others to do it and the Law is just that is here made by the Commissioners But the 1. Exception is not answered and so the Commissioners have exceeded their authority Therefore let their be a new Law made by consent and quash the presentments except better matter be shewed But we cannot order you to have your monyes again But for that take your remedy at Law Garret against Blisard Hil. 1649. Banc. sup Hill 24 Car. rot 983. VPon a special verdict found in an ejectione firmae The Case was this Grandmother Tenant for life Arguments upon a case upon a special verdict in an ejectione firmae the remainder to the Father for life the remainder to the Son for life the Son levyes a fine come ceo c. of the Land the question was whether it be a forfeiture of his estate or not Hales argued that it was a forfeiture but I could not here him well He cited these books 41 Ed. 3.10 24 E. 3. f. 70. Pasc 11. Car. Banc. Reg. Huttens reports Trin. 7 Car. Banc. Reg. and adjudged 11 Car. in King and Edwards case Dyer 339. And he said that a fine sur conisance de droit come ceo c. as it is in our case is a Feoffment upon Record and doth imply a Livery And said that a remainder may be forfeited by levying such a fine and concluded it was a forfeiture Wadham Windham on the other side argued that it was no forfeiture Forfeiture And cited Mich. 24 E. 3. and Dyer 139. and laid this for a ground that where a Feoffment in Fee made by a Tenant for lise doth displace any remainder that such a Feoffment is a forfeiture but it is not so in this Case and therefore it can be no forfeiture If Tenant for life of a rent or of an Advowson levy a fine it is a forfeiture although that no remainder be displaced this is the great objection 15 E. 4. f. 15 by Littleton and the fine fur conisance de droit implyes a Fee simple 40 Ed. 3. But there a Fee simple really passed with the estate for life But here it passes by way of interest and not by way of estopel and the Conusee may confesse and avoid and therefore here is no estopel and so it differs from the Cases objected 6 Rich. 2 Estopel 211. But it is objected that he hath taken upon him to passe all the estate which is more than he hath to passe and this makes it a forfeiture 43 E. 3. f. 22. It is good for the reversion in Fee and not for the other estate 37 H. 6. f. 5. 41 E. 3 f 14. by Thorpe It was answered that he hath not taken upon him to passe all the estate but only his own estate It is objected that the fine joyns all the estates together and purports the passing of them whole and entire It was answered that the fine doth not purport the entire estate 44 E. 3. f. 10. so much shall passe by the fine as may rightfully passe and no more and so the estate passes by fraction Cooks Instit 345. The Law construes the effect of the fine according to the intent of the parties and that wrong shall not be intended so is it here And if there be Tenant for life the remainder in fail the remainder in Fee to Tenant for life if Tenant for life levie a fine it is no forfeiture 10 H. 4. f. 2. Tenant for life may pray in ayd of all in the remainder and he said that in this case is no forfeiture nor estopel nor hath he passed more than he hath there is no wrong by the fine but it shall only passe what may be passed and he said a fine is a Feoffment when the thing to passe by it lyes in Livery otherwise it is but a grant and devests no estate as a Feoffment doth And in Baker and Hackers Case in this Court Bredons Case was denyed for Law by Bramston Iones and Barkley Hob. 388 389. It is no discontinuance and such estate shall first passe by which no wrong shall be done The Iudges ought to be Aâ—tuti to invent reasons to support estates and to defend from injuries and where the Conusee of the fine hath an interest to passe by it to satisfie the operation of it such a fine is good and doth no wrong as it is in our Case It is objected that there is a Fée simple here but it is of no value for it is after an estate tayl and shall not be assets in the Heir It was answered It is but of little value but it hath more than a right in it and so he prayed judgement for the Defendant Forfeiture Roll chief Iustice held it was a forfeiture although there be no
judgement in a trover and conversion Prestwood moved that the record is not certified for it is returned by one who is not Iudge there Abatement for it is returned by the Maior Aldermen and Deputy-recorder whereas the writ of Error was to return a record before the Maior Aldermen and Recorder 1 E. 5. f. 3. Jordan and Tompkins case 1648. Upon this the writ of Error was abated Wats against Dix Hill 1649. Banc. sup Trin. 24. Car. rot 1529. THis case was again argued Argument whether a lease well made according to direction of Deed in trust by Hales for the Plaintif and by Twisden for the Defendant I could not hear Hales but imperfectly Therefore I omit his Argument Twisden that argued for the Defendant put the case briefly thus A Feofment was made of lands to I. S. in fee until he should make a lease of 21 years to A. B. from the feast of Philip and Iacob I. S. makes a lease for 21 years to begin at the feast of Philip and Iacob And he held this was a good Lease made according to the direction of the Deed. 2ly If it be not a good Lease yet the use shall not revert to the Feoffor 3ly He held that there is neither a good bargain and sale nor doth it work by way of use For the first point he held if it had been by way of pleading it had not been good in pursuance of the Agreement otherwise it is being found by verdict but here the agreement and the intention of the parties is satisfied and the variance is not considerable de minimis non curat lex 10 Iac. Hob. f. 120. 38 E. 3. f. 7. Waste 35. 2ly In the Iudgement and estimation of men at and from are accompted to be all one in signification In the Stat. of 32 H. 8. it is so taken and in the Stat. of 27 H. 8. of enrollments and words shall be construed according to common intendment And if there be a variance yet the use rests in the Feoffees and shall not revert to the Feoffor for the word until is an Adverb of time Borastons case Sir Andrew Corbets case â—1 Rep. f. 85. Dyer 300. 3 Eliz. Mores Reports 3 Iac. Sir Guy Fairfax case if they make not the estate the estate remains in them And if it do not remain in the Feoffees yet it cannot revert to the Feoffor for he hath conveyed from himself all the estate that he had and if it return to the Feoffor it is a disseisin 2 Rep. Butlers case And for the bargain and sale that cannot be good for here is no Consideration but that which is past and not continuing which is no good Consideration Plow Com. 302.15 Car. Burton and Sherly 2ly The Consideration if there be any is not meritorious for ought any thing appears the monies may not be discharged which are laid out and so the Defendant remains unsatisffed and so there can be no Consideration Allens case 23 Car. 3ly If the debt be discharged yet it cannot raise a use for here is no monies paid but a debt And a use is not raised here because it was the intent of the parties to pass the land by way of bargain and sale Ed. Foxes case 13 Eliz. Plowd 32. 11 Car. Whitfield and Pierce rot 438. And if one intend to pass an estate out of himself he may do it either by the Common law or by Statute law Roll chief Iustice said if lands are passed for money only the déed ought to be enrolled but if it be for money and natural affection Enrollment Vse it is not needfull to enroll it but the lands will pass without enrolment And so here the land passes one way or other and if the use will rise all the other points are out of dores And there is here a continuing consideration to raise a use But the main question is whether the use riseth to the Feoffor if not all the other points are gone And he held that here was only a meer matter of trust the intent is not that the Feoffees shall have any thing by the not performing the trust but the use shall be to the Feoffor And there can be no disseisin in the case And here is a material difference in point of law in the making of this lease Lease for it is made for one day more then was agreed by the deed for that lease was to begin from the feast of Philip and Iacob and this lease is made to be begin at the Feast of Philip and Iacob Ierman Iustice held that the intent of the parties is performed and that there is no material difference and held for the Defendant Nicholas Iustice said here is no performance of the agreement for all the parties agreed not to this Lease for it is made for longer time than was agreed and he held that the use shall be to the other parties by contingency and that here is no disseisin Ask Iustice said all the difficulty is whether the lease be made or not and he held it was a good lease according to the agreement and said that the intent is not that the Feoffees shall have any thing but that it shall result to the Feoffor Roll chief Iustice said Intent the intent of the parties shall not be implyed against the direct rules of Law Nil capiat per Billam nisi c. Pendarvis against Dawkes Hill 1649. Banc. reg PEndarvis brought an Action of Accompt against Dawkes for divers sums of mony as his receiver Arrest of Iudgement in Accompt The Defendant pleads that as to all except ten pounds ne unques receptor upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that it doth not appear what ten pounds they are that are menrioned in the plea and so it is incertain whether they be part of the monies for which the Action is brought Roll chief Iustice said he ought to have expressed what ten pounds it is for as it is it is incertain and so not good Venire de novo Therefore take a venire facias de novo for though the issue be not well joyned yet the Declaration is good Cowley against Locton Hill 1649. Banc. reg Trin. 24 Car. rot 932. IN a writ of Error to reverse a judgement given in an Action of Debt upon an Obligation the case was this Writ of Error to reverse a Iudgement ment in Debt One was bound in an Obligation for the payment of certain sums of money to a Feme sole the Feme takes Baron and dies I. S. takes out Letters of Administration of the goods and Chattels of the Feme and brings an Action of Debt upon the Obligation against the Obligor The Obligor pleads that by the entermariage of the Feme the Debt due upon the Obligation became due to the Baron and demands Iudgement Si Actio Chose in Action To this Plea the
agreed that by the conference set forth in the Declaration it is agreed that there was a Bastard Child and it is a scandal to the party whether there were a Bastard Child or no and if there were none you ought to shew it on the Defendants part Therefore let the Plaintiff have his Iudgement Elsy against Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. THe Case of Elsy and Maw dit was again moved Arrest of judgement in an action for words wherein the Plaintiff had a verdict against the Defendant in an Action upon the Case brought against him for speaking these words of him Thou Sirrah art a rogue and a run-away rogue and didst run away at Oxford and art a rogue upon Record at Oxford upon a motion in arrest of Iudgement Iudgement was stayed till the Plaintiff should move Hales now moved for Iudgement because the words are actionable for they make the Plaintiff to be such a Rogue as may be endicted within the Statute and receive corporal punishment But Twisden denyed it Roll chief Iustice held it was within the Statute Yet the Court would advise In this case Ierman Iustice said That if one say that another is forsworn in a Court of Record the words are not actionable but if he say that he is forsworn upon Record the words are actionable But Roll chief Iustce held there was no difference between the words but that they are both Actionable Antea et Postea More against the Earl Rivers Trin. 1650. Banc. sup Mich. 1649 rot 588. MOre Arrested the Earl Rivers by a bill of Midlesex in a plea of Debt The Earl was therupon brought before Mr. Iustice Nicholas to put in bail Earl Rivers case touching privilege of pecrage and not being able to put in sufficient bail according to the course of the Court was committed to the custody of the Mareschal of the Marshalsea the Earl being in custody brings himself into Court by a habeas corpus and there pleads his privilege of his peerage and sayes that he ought not to be arrested and demands Iudgement of the Writ and prayes to be delivered to this the Plaintiff demurred Hales of Councel with the Earl argued to divers points but I could not here him well But the main question he insisted upon was whether that by taking away the house of Lords in Parliament whereby their voice and place in Parliament was gone the Privilege of his peerage not to be arrested for Debt was also taken away and he argued that it was not for he said that at the Common Law no capias did lye against a Peer Capias and the Statute of E. 3. which gave a capias for Debt against others did not give it against a Peer and it doth appear here that the Defendant is really an Earl and not in nomination only and he cited 27 H. 8. f. 22. b The reasons he said why an Earl had the privilege not to be arrested are two The first is in respect of the dignity of his person being called comes a comitando rege as some have thought and he is called by the King consanguineus noster The second is in respect of the presumption of his sufficiency of estate in lands to be summoned by and not by reason of his place in Parliament for they have the privilege not to be arrested as well in the vacancy of Parliaments as when the Parliament doth sit and the privilege of Parliament is that he shall not be sued but the privilege of peerage is that he shall not be arrested in his person and so they are distinct privileges and by taking away the Lords house the former privilege is taken away but not the latter and this privilege annexed to the person not to be arrested may belong to a person that hath not the privilege of Parliament as for example unto Widowes of Peers which could not be arrested and yet had no place in Parliament so that the excluding them from the Parliament doth only take away their privilege of Parliament and not their privilege of peerage and Nevlils case is that the privilege not to be arrested belongs to them in respect of the dignity of their persons 9 Rep. Salops case And it hath been a question whether comes be so called a comitando rege or in respect of their Counties whereof they were Earls and I conceive the latter derivation is the truer and then the taking away the King takes not away their privilege for the Counties remain 2ly Earls have by intendment sufficient fréehold to enfcore them to come in and answer at this day and therefore are not to be arrested and imprisonment of a mans person for debt was but a suppliment to make him answer where he had not sufficient freehold which we cannot intend here Nat. brev f. 93. And an Earl shall be amerced higher than another man in regard of the presumption of his freehold and Earls are called majores Barones in this respect 7 E. 4 Nevils case and the widow of an Earl had the privilege not to be arrested for the two very reasons that her husband had it so was it of a Bishop Abbot and Prior of England but otherwise it was of a Bishop that had a Bishoprick out of England And the late Statute that takes away the Kingly office doth not take away their names and dignities nor the presumption that they have fréeholds and therefore they are not to be arrested and their will be since the Act no more a failer of right than there was before and so he prayed the Writ might be abated Abatement Roll chief Iustice answered your Clyent ought to have prayed the Writ might have abated before he was turned over to the Marshall of this Court◠for then he was in Midlesex where he was arrested but now it is too late for now he is in custodia Marescalli Declaration and any body that hath cause of Action against him may declare against him Ierman Iustice said that the Writ is now determined which you pray to have abated so your prayer is to no purpose Roll chief Iustice said that the dignity of the person of an Earl may relate to him as he is Peer of the Parliament and the other presumption that he hath sufficient freehold may also fail but it doth not appear here by averment that he hath not freehold therefore it may be a question whether there shall be intended a sailer of Iustice for want of freehold if the party should not have been arrested and he agreed that an Earl as a Peer of Parliament had a double privilege one of his person to be free from arrests Arrests the other of his Estate to be free from sutes and he said if it had appeared by averment that the party had freehold it had been good without doubt to free him from arrests Ierman Iustice said he is now in custodia and the Declaration against him is good and now
is not within the Iurisdiction of the Court and so they cannot hold plea for it at Barnestable and the judgement was given upon a nihil dicit because the Plea being forein the Defendant would not swear it which in this case he is not bound to doe Roll chief Iustice If it appear by the Declaration that the money was to be paid out of the jurisdiction of the Court jurisdiction the Iudgement is not good and it is not necessary to swear the Plea if it appears upon the Obligation that the monies were to be paid out of the jurisdiction of the Court Plea and he plead payment according to the Condition Iudgement but if one will not swear a forein Plea where he ought to doe it the Plaintif may enter judgement upon a nihil dicit for such a forein Plea not sworn is no Plea upon the matter The Iudgement was reversed nisi c. Ley against Anderton Trin. 1650. Banc. sup Pasch 1650. rot 524. LEy brought a writ of Error to reverse a judgement given in the Common Pleas for Anderton in an Action of Debt upon an Obligation Error to reverse a judgement in debt upon an Obligation and Assigns for Error that the Obligor in the Obligation upon which the Action was brought made his wife his Executrix and dyed and that the wife being Executrix dyed intestate and that the Plaintif in the Action took administration of the goods and Chattels of the feme and brought the action of Debt upon an Obligation as Administrator to the wife whereas the Plaintif ought first to have taken Letters of Administration de bonis non administratis of the Testator and so to have brought his Action Administration To which the Court agreed and said it is a plain fault and reversed the Iudgement nisi c. Elsy against Mawdit Trin. 1650. Banc. sup ELsy brought an action of Assault and Battery against Mawdit an Attorny of this Court Whether the Huâ—band must put in bail for his wife in assault and battery and his wife The Defendant Mawdit appeared in propria persona and his wife was in custodia and so the Plaintif declared against them the question here was whether Mawdit the Defendant ought not to put in bail for his wife Burrel of Councel with the Defendant argued that the Declaration was not good because that the Husband Mawdit ought to have put in bail for his Wife and cited Smith and Smiths case and Mich. 17 Car. Simon Fanshaws case and Dyer 377 a. and Brook title Privilege 353 a. and 9 rep Roll chief Iustice said he ought to put in bail therefore the Plaintif nil capiat per billam Bail because his Declaration is not good against her in Custodia The City of London against De roy Trin. 1650. Banc. sup LAtch shews for cause why a procedendo should not be granted to London against De roy Cause why a a procedendo should not be granted to London who upon a tryal against him was committed in London for using the Trade of a working Gold-smith and a working Ieweller not having served as an Apprentise to the Trade and was brought hither by a Habeas Corpus 1. That the Declaration is founded upon a By-law and that By-law is founded upon a Custom and if either the Custom or By-law be not good in all patts the Declaration is naught and here the Custom is certified in the negative and this is oppositum in subjecto and meerly contradictory in it self By-law 8 E. 3. 77. and the By-law also that is certified is not certain and it is also unreasonable for every stroke the Defendant strikes is using of his Trade and it is unreasonable he should pay five pound for every stroke 2ly The Declaration is not applied to the By-law upon which it is grounded for the doing of a thing one day is not using to doe it and the words diversis vicibus do not help it for they are not applyed to his working as a Ieweller but to his working as a Goldsmith only also it doth not appear who is to have the forfeiture for one third part of the fine set upon him and it is not said that he gained his living by the Trade or sale of the commodity wrought and the words of using it pro lucro et proficuo do not help it for it may be he uses it for his private use and that is to his profit though he sell not the commodity Next it is unreasonable that a stranger an Alfen shall be restrained by a By-law made 40 years ago Notice where of he had no notice and that by reason of such a Law he should be punished for doing a thing which the Common Law allows namely to get his own living It is also said Non existens liber homo usus est arte c. which are words very incertain for by the offence so expressed every Apprentice may be punished for working for an Apprentice is not Liber homo Maynard on the other side cited 5 E. 3. that a negative with an affirmative implyed is good and that it is exclusive of Strangers and inclusive of the Citizens And the offence is the matter not the time of the Defendants using the Trade it is also well designed in all points to what use the fine is to be put and if there be Error they ought to bring a writ of Error and to except to the Declaration And this case cannot be likened to an Apprentises working for he uses the Trade not for himself but his Masters benefit The Court desired books and adjourned it till the next Term. Custodes libert c. against White VVHite was outlawed in an Action of Trespass To reverse an Outlawry Abreviation It was moved to reverse the Outlawry because in the exigent it was Utlest being put for an abbreviation of utlagatus est and upon this exception it was reversed Disne against Grigson Trin. 1650. Banc. sup Hill 1649. rot 98. DIsne brought an Action of Debt upon an Obligation against Grigson Demurrer after an issue joyned the condition was for the payment of a certain sum of money upon the resignation of a living and a certain annual sum at two payments The Plaintif aseigns a breach in not paying such a sum at such a day upon this the issue was entred and after the Defendant demurs Roll chief Iustice The Defendant is a Mad-man and we cannot give Iudgement against him stay therefore till he is recovered Yet take your Iudgement nisi Iudgement Error c. for the other may bring his writ of Error if he will Nota. Bernard against Levit. Trin. 1650. Banc. sup BErnard brought a writ of Error against Levit to reverse a Iudgement given against him in the Common Pleas in an action upon the case for speaking these words of him Thou Bernard art a base fellow Error to reverse a judgement in an Action
in Colton and by this demand the Kind of the Tithes demanded is not made certain for the word garba admits of divers constructions and so Lynwood the Civilian shews 3ly It is not expressed whether the Defendant be terr-Tenant or heir 4ly The demaund is ac etiam de rectoria de Acerstall Malvis which is incertain for it ought to be de rectoria ecclesiae Roll chief Iustice to the 1. Exception said Miscontinuance that the appearance of the party will help miscontinuance of proces and so it doth here Hales to the 2d exception said that decimae garbarum is certain enough to common understanding To the 3d. Exception he held it not necessary to say de rectoria ecclesiae for it must be so necessarily intended The Court desired to see books and so it was adjourned At another day the case was again moved and these spoken to and answered 1. As before that decimae garbarum is certain enough so common intendment 2ly That it is not necessary to expresse the setting forth of the dowr in the tithes by metes and bounds for tithes cannot be so set forth and it is not constant to use the expression per metas et bundas Latch took another exception that it was improperly expressed for one to enter into an Advowson And to the exception formerly taken he held that the Proclamation of summons ought to have been returned and that fault is not helped by the late Act because it is matter of substance and not meer matter of form and he said that appearance of the party doth salve a discontinuance of mean processes but not of originall processe as this is which is the very foundation of the Action and that though the want of a summons be helped by the partyes appearance yet the want of returning the summons is not helped by the partyes appearance Next he held as formerly that decimae garbarum is incertain and that the nature of the corn ought to be shewed Roll chief Iustice said Return that the not returning the proclamation of summons is not material for the summons is only to make the party appear and he hath appeared in this case and the late Act extends to it if it were not good without it And the demand of tertiam partem garbarum is certain enough by common intendment but it seems more certain here than so for it is tertiam partem garbarum granorum which signifies corn And it is not necessary to express the setting forth of the dowr per metas et bundas but it is well as it is without that expression And lastly It is well enough said ingressus est into the advowson although it be not so proper an expression as might have been used for it is good enough to make the party tenant Ierman Iustice to the same effect and said that if there be two Tenants in Common and one of them dye it is a great question how the wife shall be endowed viz. whether per metas bundas or no. And he doubted whether the Writ of error here brought were good or not for it is retornable coram custodibuâ— libertatis c. apud Westmonasterium whereas as it ought to be coram custodibus ubicunque for they are not fixed to Westminster Nicholas Iustice to the same effect Error Roll chief Iustice said it was a good exception that Ierman took to the Writ of error But the Court was here at Westminster at the return of the Writ and the Writ was made by the Custodes themselves and the partyes did appear upon it and therefore he questioned whether it might not be made good for these reasons Ierman Iustice held it could not Roll chief Iustice said that all the Latin presidents are agreeable to this Writ and it would be dangerous to alter them But let the cursitors attend Presidents and give their reasons why they do not alter this form and if the Writ be good me thinks the Iudgement should be affirmed Yet we will advise a little of the writ and whether the demand of decimam partem garbarum without granorum be good or not Postea Lumley against Nevil Mich. 1650. Banc. sup IN a writ of error brought upon a Judgement given in an ejectione firmae Error in an habere facias Possessionem It was said by Roll chief Iustice That if the writ of habere facias possessionem do contein more Acres of Land than are expressed in the Declaration that it is error But if the Sheriff do give possession of more Land than is conteined in the writ of habere facias possessionem an Action of the case lies against the Sheriff or an Assise lyes for the land It was also said that if a Iudgement be affirmed upon a writ of error in the Exchequer Chamber Error Case Assise Execution yet they cannot grant out execution there but it must be in this Court Hunt against Popham Mich. 1650. Banc. sup IT was moved for the Defendant to have the rule of Court for the Plaintiff to bring in the postea The court not to be moved for a rule where it may be given in the office Nonsuit that the Defendant may move in Arrest of Iudgement The Court answered they would make no rule for the Defendant may give rules in the office to force him to it and if he will not bring it in he is to be nonsuit Fairefax against Fairefax Mich. 1630. Banc. sup THe Case between Fairefax and Fairefax was moved again Whether a demand in down good or not and Hales held that the demand of dowr de decimis garbarum was certain enough though it be not garbarum granorum and he cited the Register 46. and Dyer f. 84. and one Cavendishes case 8. Iac. Roll chief Iustice took a difference between a demand of Tithes and the suing for a recompence for Tithes upon the Statute of 2 Ed. 6. and cited the Regist 165 and he held the demand here to be good with whom concurred the other Iudges Ask Iustice said that a garb is a french word and signifies any thing bound up into a bundle but by Cowell the Civilian it signifies Corn bound up and so is the word commonly used at the Common Law Demand Roll chief Iustice said that a demand in a praecipe ought to be more certain than it is necessary for a demand in dowr to be Latch said that the words coram nobis apud VVestmonasterium is part of the stile of the Court which Roll chief Iustice denyed yet he said it was well enough because the Court was there at the return of the writ of Error To which the other Iudges agreed and the rule was that the Iudgement should be affirmed nisi c. antea Mich. 1650. Banc. sup THe Court was moved that one was arrested upon a day of thanks-giving appointed by the Parliament Moved to discharge an arrest and that he was forced to put in bond
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
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
to his heir in the singular number And he argued that the word heir includes heirs because it is Nomen Collectivum Next Whether the devising the land to Richard for his natural life and after to his heir for ever makes any difference in the Case and he held it did not and said that Archers case that is objected by the other side differs much from this for there the words are restrained for it is Proximo Haeredi and not Haeredi generally as it is in our Case and there the words next heir are not words of limitation but of purchase and to decipher the person but not to limit the estate and in our case if there should not be a limitation Richard should only take for life which is not the intent of the Will as may appear by the passages and clauses of it And Thomas and Kemishes case in 5 Car. in this Court makes an end of our Case Neither doth the adding of the word in perpetuum make a difference in the Case for if the words had béen omitted the same estate had passed to the Tenant Richard and his Estate is not enlarged by them 2ly The words in perpetuum relate to all the Estate and not to any particular Estate and so the surrender made by R. Hunt is good Next of all supposing that it be a limited Estate and a contingent remainder the question will then be whether this contingent remainder be destroyed or no and I conceive it is because the particular Copyhold estate which must support this contingent remainder is destroyed and the Law is the same in that point in Copyhold cases as it is in other cases at the Common Law for Copyholds are directed by the rules of the Common Law 13 Iac. Banc. Reg. It is also held that there is the same rule to support a contingent remainder of a Copyhold as there is of Land at the Common Law Next it is to be considered whether the particular Copyhold estate be extinguished or not And it is cléer that it is for the customary Estate is in the Lord who hath the Fée simple which cannot both stand together and so there is no estate to support the contingent remainder Copyhold and consequently all objections are by this answered 1. That the surrender shall not do wrong 2ly That the surrender destroys not the Custom Turner on the other side argued that only an estate passeth to Richard for life and that the word Heir is not a word of limitation to make the Ancestor take a Fée simple neither shall the word Heir be taken Collective here but singulariter and so according to the common sence number and matter ought it to be construed And Nowns Collective in the singular number do not signifie the same thing that they do in the plurall number as may be proved by other examples and there is no proper name to signifie one particular Heir in Law if the word Heir in the singular number shall not do it Shellyes case 1. Rep. f. 101. â—ooks institut f. 8.1 Rep. Archers case And there are two Iudgements in the Common pleas in the very point as I am informed by the Attorney on our side In a Will the word Heir shall not be taken Coliective out in the natural grammaticall sence and not as a word of art but it is otherwise taken perchance in conveyances which are made by men of Art and learned in the Laws whereas wills are made commonly by lay gents and unskilfull in the Law And the rule is that words shall be interpreted to make all the parts of a déed in which they are to stand together and to bear sence and to be in esse and effectual which cannot be here if the word heir shall be taken Collective but may be if it be taken singulariter Hob. rep Stukely and Butlers case Next if the word heir should be taken Collective then the Estate for life would merge 30 El. C. B. Hill 3 Iac. C. B. Hiller and Lewis his case 3ly Rich. hath only an Estate for life if it were otherwise the Testator would have otherwise expressed it and he hath well expressed an estate for life and no other Estate in him If one grant 4. parts of his mannor it shall passe 4. parts of 5. and not all For the other poynt the contingent remainder is not here destroyed by the destruction of the Copyhold Estate for Copyhold Estates do not depend one upon another as Estates of the Common Law do and here is one in esse to take the Estate Another question he spoke to viz. whether a Lessee at will being ousted by a stranger can reenter and he held he cannot for he hath but a meer right 38 H. 6. f. 27. Fortescue and Yelverton 3. Iac. Banc. Reg. rot 501. Carpenter and Collins But to this Roll chief Iustice Entry and Nicholas Iustice answered that he may enter notwithstanding it hath been heretofore controverted and the reason is because he hath the primer posseâ—sion Roll chief Iustice enclined that the contingent remainder is not destroyed because it doth not here depend upon the particular Estate but it ought to expect till the remainder happen and he conceived that the word heir and heirs were all one here by the intent of the partyes and the frame of the conveyance Ask Iustice said that it is a good Estate of Fee simple conditionall executed in Richard Ierman Iustice The intent in a Will if it be not contrary to Law ought to be taken and there must be words to make the intent appear and these words must stand together and shall not be made void and he conceived the contingent remainder not destroyed Adjourned till the next Term. Postea Port against Midleton Hill 1650. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of debt upon an obligation Error to reverse a judgment in debt and the Error insisted upon was in the entring of the Iudgement which was quod recuperet Debitum suum and doth not say praedictum Roll chief Iustice answered Delivery Escrow that the debt is confessed by the party and the question is whether the deed was delivered as an escrow or not but it was delivered to the party himself and therefore could not be delivered as an escrow Ierman Iustice said that debitum suum without praedictum is not good for the word praedictum is verbum operativum Ask Iustice as Roll and there is but one debt Implication and the word ideo in the record implyes it to be the same debt Nicholas to the same effect The rule was affirmetur nisi causa die Iunae sequenti Hill 1650. Banc. sup AN administrator had a Iudgement against one to recover a debt due to the Intestate and then the Administrator dyed Intestate For a scire facias to revive a judgement denyed Scire facias and another took out new letters of administration de bonis non
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
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
to be measured by ordinary rules of Law And 2ly Antient grants are to be construed as the Law was at that time when they were made 9. rep 27.6 rep 48. 〈◊〉 H. 7. 〈◊〉 14 E. 3. Fitzh Scire facias 23. and the King is not bound by a general custom as Common persons are 35 H. 6.29 by Prisot 22 Ed. 3. The King shall not pay a heriot upon the purchase of heriatable Lands and we shall find that many maximes of Law upon serious scanning of them are not so certain to be relyed on as they are commonly held to be 5. rep Knights Case Pasc 3 Eliz. B. R. Conisby and Risby Dyer 10 Eliz. and the patentee of the King shall have the same privilege that the King should have had if he had not granted the Letters patents 27 Eliz. Stubs and Rigfords case At another day Arthur Harris spake again to the point that the King had no legall intent to destroy the Copyhold Estate by his patent and therefore it should not be destroyed and cited Grotius de jure belli et pacis 343. and that no such intent can appear in the words of the patent and cited 7. rep Inglefields Case and 17 E. 3. f. 19. and Cooks Institutes 373. and 1. rep 46. and Plow 333. and as to the last point he argued that the Patentée of the King shall be in the same condition as to the reviving of the Copyhold Estate as the King should have been if he had not made the grant because that the King hath the Fee and he may grant it as he pleaseth Dyer 16 Eliz. 337.1 rep 31.10 Eliz. Dyer 266.24 Ed. 3. Fitz. Tit. guard 27. and no priority can be pleaded against the King nor against his Patentee Hill 30 Eliz. Stubs and Rightwayes Case an Action of Accompt against Executors doth lye only for the King It is true that prerogatives inseparable and annexed to the person of the King cannot be granted away by the King but prerogatives separable may be granted away 12 H. 4. Fitzh guard 81. The Grantee of the Grantee of the King shall have the prerogative of the King by reason of the thing granted by the King Brook praerog 17. 21 H. 7.2 Br. entre congeable 4â—â— The King may distrein for a rent seck but not his Grantee because it is a prerogative executory and not executed for in such case it is otherwayes and as to the objection to the cause of the demurrer set forth that the Concessit is not answered because it only sayes mentionat esse concessum I hold it well enough but if it should not be yet it is helped for both partyes do agree in the setting forth of the Letters Patents 34 Eliz. B. R. in Harâ— and Smiths case and the grant is confessed in our rejoynder and though the demurrer should not be good yet the Avowant cannot have Iudgement for he hath not entitled himself to the Action as appears by his grant for his grant is void and cannot take effect rep 46.8 rep 201.39 Eliz. in the Chequer Chamber Where 2. Manours are granted by the name of one of them the grant is not good And in our case Thomas Boothby had nothing in the land at the time of making of the deed of Covenant to stand seised to use as it appears by the Avowants own pleading and the postea cannot help it Dyer 111. Clarks Case Hill 15 Iac. entred Trin. 15 Iac. rot 29. Desmons case 20 H. 615. Hales on the other side argued for the Avowant and prayes a return of the Cattel distreyned first he put the Case at large And he said that the Plaintiff hath not well set forth the Kings grant in his bar and so it is all one as if he had not set it forth at all Plowd 563. and he hath disputed that which we have not alleged and the sur rejoynder is but argumentaive and not positive and nothing appears to the Court and he hath quite mistaken his course and way But admitting the case and the points to be as they are made viz. 1. Whether the new Office be well granted because the word Constituimus is omitted 2. Whether the grant for life be good 3. Whether the grant of the Copyhold for life be a suspension of the Copyhold estate or an extinguishment of it which is the great question in the Case For the 1 point I hold that here is a good grant of this new Office and that the word Constituimus is not necessary because that there are special fées also newly granted 2ly This is not an Office in gross consisting and resting upon it self but it is a relative Office or an imployment incident in the interest of the house granted and therefore the word Constituimus is not here necessary Dyer 200. 3ly If it be not a formal Office yet here is a good grant of an employment to which a recompence may be added although an Assize cannot be brought for it 3 Ass Trin. 6 Iac. Abercromies Case And here the protestation that the King was not informed that this was Copyhold land is unnecessarily alleged and therefore it is not of necessity it should be answered and if it be not well set forth it is not material For the 2 question whether the King was deceived in his grant he said that the King needed not to take notice of any former estates and that the Statute expresseth that it is not necessary to recite them 24 H. 8. 2â— To the 3 point the chief question whether the Copyhold estate be suspended or extinguished he held it was extinguished and cited Knights case Alton woods case and said that the rules of the Civil Law ought not to be applyed to the Common Law nor to be cited to perplex the proceedings thereof and were this in the case of a Common person without doubt the Copyhold estate would be destroyed 20 Eliz. by Popham and Fenn and the King here hath the Fee simple and there is no difference between the case of the King and of a Common person in this regard a thing which will not pass by the King without notice will not pass with notice and here is no prejudice to the King in not taking notice whether by the Patent the Custom to grant Copyhold estates be destroyed or not and here is a necessary consequence in Law that the custom is destroyed because the King that had the fee in the Manor hath suspended the Copyhold by his grant All the Arguments used on the other side are to destroy the Kings grant and the cases put do all differ from our case and do stand upon their own bottoms Nor shall the King be intended to be mis-conusant of his particular grant such as this is although he may be in a general grant lib. Ass 21. pl. 19. Pasch 12 Car. C. B. Glover and Edgars case and it would be a great mischief if the Copyhold estate should be revived As to the last point whether the
Patentee shall be in the same condition as the King was he said that it is not material whether he be or no as to the Case in question and rested upon the 3 question If the King hath free warren in land and grants the land and mentions not the warren yet the warren passeth by the grant And here out Avowry stands pro confesso because the Plaintif hath made no title A grant of a Manor per nomen maneriorum is a good grant of the Manor and here is a good grant and if not yet it is helped by the Statute of 3 4 Phil. Mar. C. 1. 1 H. 7. f. 28 and the Postea here refers not to the grant of the Copy and here is no ouster alleged and if there be there is do disseisin but it passeth an estate for will between the parties Roll chief Iustice It would be dangerous to make the Patent void because the King took no notice of the Copyhold estate and this point is not fit to be argued A thing not materially alleged in pleading is not necessarily to be answered and it is not necessary to create such an Office as this is for it is but an employment The great question is whether after the death of Sr. Iohn Gate the Copyhold estate can be revived or not in the case of the King It may be dangerous whether it be one way or the other As to the pleading we will not make it ill if it may be good Argue the great point again for it is a difficult point and of great consequence Ierman Iustice to the same effect and enclined that the King had no intent to destroy the Copyhold and he held that the Office was well granted because it was but an imployment Nicholas Iustice inclined that the Copyhold was destroyed At another day Wadham Windham argued for the Plaintif and first he put the case at large and then said that 1. It appears by the replication that the Avowant hath no title 2. He confesseth that the Plaintif hath a Title Queen Mary seised of the Manor of Chingford Comitis whereof Pipers Down is parcel grants it per nomen duorum illorum maneriorum and it is not averred that she had two Manors First it is considerable whether the Patent be good by the Common Law 2ly Whether if not yet it be made good by the Statute of H. 8. and he held 1. That it is not good at the Common Law because it is incertain and wants sufficient words and here is an apparent falsity for he hath two Manors and he grants but one and if the King have two Manors and grant them per nomen Manerii this is not a good grant As tithes belonging to a Rectory cannot pass by the name of a portion of tithes neither do all the Statutes of Confirmation of Patents confirm less or greater values granted than are comprised in the Letters Patents 41 Eliz. Pasons case in the Exchequer A presentation to a Rectory where it ought to be ad Medietatem Rectoriae is not a good presentation 2. rep Dodingtons Case Dyer â—31 An ill grant is not helped by the Statute because it is not named 2ly A false suggestion is not helped by the Statute of 34 H. 8. 3 Car. Sir Hatton Farmers case and in our case here is a mistake of a thing and not of the name for it is a Manor for Manors and so there is no true meaning and therefore it cannot be helped by the Statute Pasch 1 Iac. rot 216. C. B. Dawson against Pickering The Queen was seised of two Manors viz. of Rushworth and of Dale and granted the Manor of Rushworth habendum the Manor of Rushworth with the Manor of Dale and it was held an ill grant at the Common Law and not helped by the Statute But it is objected that this Manor may be known by the name of two Manors and so in our case although the King was seised of one Manor and granted this Manor habendum per nomen duorum Maneriorum this is good Mich. 22 H. 6. pl. 16. f. 13. To this the answer is that it cannot be pleaded per nomen without an averment that there are two Manors 2 Ed. 4. f 28. the last case There is a difference between a feofment and a release a feofment may be pleaded per nomen without an averment but a release cannot be so pleaded for in a feofment the livery operates to pass the land 22 H. 6. Hill f. 39. pl. 9.13 and Dyer the Serjeants Case where there is certainty there needs no averment but it is not so in our Case 1 H. 7. f. 28. and it is a forein intendment to suppose that one Manor of Chingford Comitis shall be known by the name of the two Manors of Chingford Comitis and we need not plead by a non concessit because the Avowant hath made no title and so he can have no return 1 H. 7. f. 28. 6 H 7. f. 6. and here is no certainty added to make it certain by the words illorum quod nuper perquisivimus de c. To the second point The Avowant hath confessed the Plaintifs title for he hath confessed that K. H. the 8th hath made it a Copyhold and if the Copy be good our title is good As to the question whether when a Copyhold comes to the King and he leaseth it this doth not so destroy the Copyhold that when the lease is out it may not be Copyhold again I hold that if a Common person lease a Copyhold the Copyhold is destroyed but it is not so where the King leaseth it as it is in our case which ought not to be measured by the Common rule of Law for the Law of the Crown over-rules the Common Law and the Law of Custom 22 E. 3. The King is not bound by Custom as a common person is 35 H. 6. The King having Gavelkind lands may destroy the Custom which runs with such lands pro tempore only and the Kings grant shall not enure to a secondary operation as Knights case is and here is no prejudice to any person that the Copyhold estate should be revived here the consequence may be severed and it is not necessary and therefore the lease of the Copyhold not naming it Copyhold is good As to the Objection made that it is no benefit to the King to make it Copy-hold again the answer is That it is a prejudice to take away a mans privilege and liberty if there were no other inconvenience but here is more for there may be prejudice by losing the Common c. And the rule that a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind common persons and the Statute makes not the grant good as to the reversion The Copyhold is demised and yet shall be demisable hereafter and so it may be pleaded for pleading follows the Law A Custom interrupted in the right is gone for ever
but if it be interrupted but in part it is not so as it is in the case cited where the King hath Gavelkind lands Com. Plowd 114. and so prays judgement for the Plaintif Adjourned Latch at another day argued for the Avowant and said that the Plaintif in his rejoynder hath made no title unto Susan Tong from whom he claims It is objected that by the grant of the Manor of Chingford Comitis per nomen duorum illorum maneriorum c. that Tong cannot be intituled It is answered that the other side hath confessed that Tong hath a title for they derive from her also and the contrary doth not appear to the Court and it being agreed the Court will not make a doubt of it He made 3 Questions 1. Whether the Manor of Chingford Comitis passeth per nomen duorum illorum maneriorum de c. 2ly Whether if the grant be ill it be aided by Statute 3ly Whether it be helped by the Averment For the 1. he held that here is a good grant without any averment or aid of the Statute for if the King grants two Manors one shall pass and e converso it shall not be so in the Case of the King but it is good in the case of a Common person with an Averment The grant of the Manor of Saperton cum Rippen is an ill grant for the incertainty of it but here is no such incertainty here is no non nosmer of the thing for the word nomina requires not a proper name but it is all one as if it had been expressed by words comprehending it and the word Manors doth comprehend it If the King grant his two Acres of Land lying in a Common field although but one Acre is to be found yet the grant is good and it is not like to the grant of a Manor with the Advowson where the King hath but a moyety of the Advowson or a moyety of the Manor for the Moyety is not actual in the whole but one is actually in two and so it is well named here 2ly Whether it be good without an averment that the land was in the Lord Darcy and he held it was If the words were general in the grant all of them ought to be true otherwise nothing will passe by the grant as Dodingtons case is but here is a proper name to express it and therefore the grant is not destroyed although the latter description do not agree to it 10. Rep. Harpers Case 2 H. 4. f. 2. If the King grant all the lands in the Patent annexed bearing date 10 of Iune though the Patent bear date the 10 of Iuly yet is the grant good for veritas nominis tollit errorem demonstrationis and if the grant should not be good at the Common Law yet it is ayded by the Statute of 3. 4 Phil. Mar. and here is a full and a strong averment in the pleading for it is Manerium praedictum and not Manerium generally and here is not only a possibility but also a facility for it to pass and it may be called Manor or Manors and in a feofment a thing may pass per nomen because that the livery passeth it where one pleads per nomen he is to make the Plea agree with the Record or specialty otherwise per nomen shall not be pleaded and Newtons opinion against this is but a single opinion 33 H. 8. Br. Averment 42. The word praedict makes an averment in the name of the Feoffor â—4 H. 4.30.22 H. 6.40 Barton and Escott here is also a full averment of the thing granted this is in grants 7 E. 4.24.33 H. 6. f. 22 26 Ass 2.24 Ass 6. so in Letters Patents Dyer 86. the Serjeants case and if this be authority it is in the very point Dyer 207. praedict per nomina is a good averment Pasch 7. Iac. Rot. 430. B. reg Stonehouse and Reeds case where there was not so much as a per nomina but only decimas praedict and yet adjudged to be a good intitling by the word praedict because it was held a good averment although it was not led on by a per nomina and there admitted to be clear if it had been with a per nomina as the Case here is so Tong is well intitled 2ly The Plaintifs title is well avoided and we have well destroyed his Copy without doubt if a Common person had granted the Copyhold for life the Copy-hold had been thereby extinguished and our case is not a prerogative case for the King is bound by the Custom of the Manor and the Custom is here destroyed and the prerogative cannot create the Custom anew and it is against the Kings Prerogative to have things drawn out of the King without matter of Record and it is prejudice to the King to have the Custom revived for the lands are now made free and shall never return again to the Vassalage The Kings Prerogative exalts him above a Common person but this custom makes him equal to a common person 2ly The Custom here cannot be supported but here is an absolute extinguishment of the Copyhold so that it cannot be regranted The law will confirm things necessary to the grant of the King in some cases where it is prejudicial to the King 16 H. 7. f. 8. Nicholas case Plowd 489. The king seised of a donative makes it presentative if he do but once present unto it so if he turn an Annuity into a rent charge by taking a distress And the nature of this Custom here ought not to be examined with other Customs for it is more strict than in other cases for if it be once destroyed it is always destroyed and cannot be suspended and it is not for the Kings dis-advantage to have the Copyhold destroyed but it is for his advantage and conveniency and so he prays judgement for the Avowant Roll chief Iustice All will come and rest upon the last point for all the other things are admitted The grant is good by the per nomen and it is only nominal and doth not imply that there are two Manors and it may stand well enough with reason that it may be known per nomen But the last point is considerable he enclined to Latch Nicholas Iustice to the same effect and that the praedict is a good averment The last point is considerable but prima facie here the custom is not destroyed Ask Iustice to the same effect and that it appears that the King intended to grant but one Manor Roll We will take time till the next term to speak to the last point which is only doubtfull and to deliver our opinions Ierman Iustice the pleading of the party per nomen helps not the Patent if it be not good in it self The next Term Roll chief Iustice for himself and the rest of the Iudges who he said concurr'd in opinion with him delivered the opinion of the Court to this effect 1. That they were agreed that
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
supplyed by a forein intendment and the party shall be intended to be in custody according to the Custom of London and not by the Common Law Declaration Roll chief Justice held the Declaration good for the prisoner was in custody of both the Sherifs although he was in the Custody of Pack and it stands well enough with the Record and the words ut praefertur do not hurt the averment Averment and the words existent in custodia is a good averment that he was in custody as in an endictment Tunc existens tenementum is good and it is also here found by the Iury that he was in custody for how else could they find for the Plaintif Ierman ad idem But because the two other Iudges had no Books delivered them they would deliver no opinion then Afterward Iudgement was given for the Plaintif Cottrell and his VVife against Theoballs Mich. 1651 Banc. sup COttrell and his Wife brought an Action upon the Case upon an Assumpsit against Theoballs and declared that the Defendant Arrest of judgement in an Action upon an Assumpsit in consideration that the Plaintif would marry A. that is now the Plaintifs wife did assume and promise to the Plaintif to make good a Legacy given unto her by her Fathers Will and would also give unto her 40 l. more out of his own part given unto him by the said Will at her age of 18 years and declares further that thereupon he did marry her and that the Defendant had not performed his promise and so concludes to his damage so much Vpon non assumpsit pleaded and a Verdict for the Plaintif the Defendant moved in Arrest of judgement and took divers Exceptions but the Court insisted but upon one of them and that was held material and it was this That the Wife did here joyn in the Action with her Husband Action which she ought not to do because the promise was made to the Husband only and for his benefit and the sole consideration for the promise doth arise from the Husband namely his marying the Feme And Bafield and Collins his case 22 Car. and Cheesman and Wats case 23 Car. were cited and Roll chief Iustice put this case A promise was made by one to a Feme Covert that if the will procure her Husband to levy a fine of such lands that he would give her a riding suit And it was adjudged that the Baron and Feme cannot joyn in an action for breach of this promise and he said that in the case at Bar it was a meer covenant and no duty grew thereby to the Feme Case Postea Goodyer against Shaw Mich. 1651. Banc. sup Mich. 1650. rot 633. GOodyer brought an Action of Trespass for an Assault and Battery Demurrer to a plea in an Action of Trespass and wounding of his Servant and taking away 12 plate locks against Shaw The Defendant Shaw pleaded not culpable to the Assault and Battery and wounding and as to the taking away of the locks he pleaded a special plea of Justification by vertue of Letters Patents of incorporation granted to the Lock-smiths of Durham by Cutbert Bishop of Durham who had jura regaliâ— within the County Palatine of Durham and that by vertue of this Charter the locks being not good he as Warden of the Company did take them To this Plea the Plaintif demurred and for cause it was shewed that it appears not by the Plea that the Black-smiths are a Corporation created by the Bishop but only that the Customs used amongst them in Order to the regulating of their Trade were confirmed by the Bishop which doth not make them a Corporation Plow f. 199. Long quint. f. 40 41. 2ly It doth not appear by the Charter that they have any authority to take away ill made locks and therefore judgement was prayed for the Plaintif Roll chief Iustice said That here doth not appear any Order made by the Corporation to take away the Locks Corporation and therefore it was done without warrant though the Corporation had such a power But besides it will be very hard to maintain the Lock-smiths to be a Corporation because the Bishop confirmed their Orders Therefore let the Plaintif have his judgement nisi Bishop against Fitzherbert Mich. 1651. Banc. sup BIshop brought an Action upon the Case against Fitzherbert Arrest of Iudgement in an Action for words for speaking these words of him thou art a Theef and hast stollen Horses Vpon not guilty pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that as the words are laid in the Declaration they are not Aâ—ionable for it is incertain of whom they were spoken The Declaration was thus That the Defendant Colloquium habens cum querente in the presence of others dixit meaning the Plaintif Thou art a Theef and hast stollen Horses The Court at thâ— first moving of this Case enclined the words were actionable because it shall be intended they were spoken of the Plaintif though it be not directly said so And afterward it being moved again the Court held the words well enough laid to bear an Action because upon the whole Record the words plainly appear to be spoken of the Plaintif and therefore Iudgement was given for him Freeman against Childeress Mich. 1651. Banc. sup Entred Trin. 1651. rot 45. FReeman brought an Action upon the Case against Childeress for speaking these words of her She is a Whore and I will prove her a Whore Arrest of Iudgement in an Action for words and an arrant Whore Upon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and spoken in passion the judgement at the first moving of it was stayed yet it was then doubted whether the words did not import more in them than to say barely of a woman she is a whore But afterwards it being again moved Roll chief Iustice said that the words were too generally spoken to be actionable and that they are but words of passion and that before the Act made against Adultery prohibitions have been granted to the Prerogative Court for libelling against persons for calling of women whores Prohibitions and therefore Nil capiat per Billam nisi Preston against Mortlock Mich. 1651. Banc. sup AN Action of Trespass was brought against 4 Defendants and before a Verdict one of them dyed and the Verdict was found against the Defendant Iudgement Twisden prayed the Plaintif might have judgement against the other three Roll chief Iustice answered If you will relinquish your damages as to the person that is dead you may have judgement against the rest Davis against the Lord Foliot Mich. 1651. Banc. sup THe Court was moved to grant the good behaviour against the L. Foliot Motion for the good behaviour because he was endicted for a foul Battery at the Sessions
one as if the party had appeared for if he had appeared the Case would have béen otherwise So Iudgement was given for the Plaintif nisi c. Pasch 1652. Banc. sup MEmorandum One brought by Habeas Corpus from the Fleet remaâ—â—ed One was brought into the Court by the Mareschall of the Fléet by vertue of a habeas Corpus directed to him out of this Court and because it did appear upon Record that the party was charged with divers debts when he was turned over to the Fleet he was not suffered to put in Bail here but was remanded Gossage against Tayler Pasch 1652. Banc. sup Hill 1650. rot 117. IN an Ejectione firmae upon a Lease for years of a Messuage Special verdict in Trespass and Ejectrueâ—â— and certain lands in Hatfield Broad-Oak in the County of Essex upon a special verdict found the case fell out to be this Rich. Frank seised amongst other lands and Tenements of the Messuage and lands in question upon the mariage of his Son Leventhorp Frank with Susan Cotele levies a fine of the lands to the use of himself during his own life and the life of Leventhorp his Son and after during the life of Susanna Cotele the wife of Leventhorp the remainder to the use of the heirs to be begotten upon the body of Susanna by Leventhorp her Husband The question here was whether the word heirs shall be intended the heirs of Leventhorp and Susanna his wife or whether the estate shall be intended to be limited to the heirs of Susanna only and that Leventhorp shall have barely an estate for life in the lands Serjeant Glyn of Councel with the Plaintif held That Susanna Cotele hath an estate tayl executed in the lands and that the word heirs shall relate only to the heirs of Susanna and not to the heirs of Leventhorp 1. Because that here is an estate limited for life unto Susanna by an express limitation and her heirs shall take immediately after the estate for life ended and they shall not come in as purchasors By express Terms the word heirs is not limited to any person but it is left to the construction of the Law and that doth apply it to Susanna as to a person to whom Richard that setled the lands hath expressed most affection as appears by the Deed Lit. f. 6. Sect. 28. There is an expression of the party to whom the word heirs shall relate but so is not here and therefore the cases differ In 3 Ed. 3. f. 31 32. It is ruled that both parties have an estate tayl because the estate is limited to both but so it is not in our case so those books are not against me In our case it doth not appear that Richard did intend to advance the Husband of Susanna and therefore it is not reason that the word heirs should relate to him but to Susanna his wife only for in case of limitation of estates the intention of the party is to be considered and doth direct the matter and the preceding limiting of the estate to Susanna and not to Leventhorp doth shew that the party did mean to promote the heirs of Susanna Lit. Sect. 27. Dyer 27. A second reason is drawn from the penning of the déed which in the limitation of it doth encline more that the word heirs should be applyed to Susanna than to Leventhorp for the words upon her is as much as to say of her and then it is the same case with Littletons case 3ly The Intention of the Donor appears to be such by the circumstances of the entire limitations which do shew that he did intend that Leventhorp should not have such an estate whereby it should be in his power to deprive his issue and therefore the word heirs are to be applyed to Susanna and not to Leventhorp for if it should be applyed to both then Leventhorp might destroy the estate of the issue contrary to the Donors intent And whereas Dyer 99 is objected against me I answer that case is not against me for there the word heirs is expresly limited to a certain person viz. to the heirs of the body of both of them but so it is not in our case and whereas Hill 13 Iac. Lane and Panels case in this Court is also objected against me I answer that that case is in effect the same case with Dyer and the question in our case came not in dispute And the will of the Donor in deeds is to be ohserved Lit. 22. C. Tayl. 1. rep Shelleys case 103. 〈◊〉 Notwithstanding in gifts in tayl this rule holds not so that a gift in tayl may be limsted contrary to the rule of the Common Law And I know not of any authority in print or writing against me but in 13 Ed. 3. Fitz. tit variance 81 there is an expresse authority for me and 4 H. 4. Fitz. br 448. in my experience I have known many estates limited as this is in the Southern parts held good estates tayl if it should be otherwise many estates would be shaken Roll chief Iustice We have delivered our opinions before against you viz. that it was not the meaning of the donour to apply the word Heirs to the body of Susanna only for this construction would offer violence unto the words as appears by Littleton who interprets that they are to be applyed to the Heirs of both the partyes and your reason is founded upon a wrong ground and expresly against Litletons case and for your second reason it is of no waight for the words are all one as if he had said to the Heirs of the Husband and wife begotten upon the wife 3ly We are not to frame a meaning against plain words which shew the Donors intent to be against you And the Baron cannot Bar the Estate tayl as you suppose Tayl. for the Feme hath an Estate for life and if she survive she may revive the remaining Estate and we must not consider of inconveniences which possibly may happen against the expresse words of the deed and the multitude of conveyances made in this manner are of no force to alter the Law Ierman Iustice as Roll. That the word Heirs shall be applyed to the Heirs of both partyes because voluntas donatoris secundum formam chartae expressa est observanda Nicholas and Ask Iustices of the same opinion Garland against Yarrow Pasc 1652. Banc. sup THis case being in arrest of Iudgement formerly spoken unto in an Action upon the case for these words Arrest of Iudgement in an Act on for words you are a knave and keep a Bawdy house was again moved by Christ Turner who held that the words are not actionable 1. Because they are of spiritual cognisance 2ly It is not said that he kept a common Bawdy house 3ly here is no special damage laid 10 Car. These words he is a pimp adjudged not actionable in Lewis and Whittons case 4ly It is not alleged that he
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
transitory matter Where one justifies a thing done it ought to be confessed that he did it so if he traverse that he hath not done a thing here it implyes it is done some where else Latch for the Defendant made this question whether upon the matter as it is here pleaded the jurisdiction of this Court be taken away and he held it is It is the honour of this court to imaintain the jurisdiction of all other Courts and therefore I hope it is not misbeseeming me to put it in mind of this honour that belongs to it I believe that according to the antient Law of the land actions ought not to be laid else-where then where the matter that caused them did arise although that now by custom it is grown otherwise Although the Plaintiff may fix a transitory Action where he pleaseth in ordinary matters yet he cannot do it where the matter ariseth within a speciall jurisdiction as the case here is It is not a good allegation that binds up the jurisdiction of this Court except where it appears that the allegation is true the allegation here may well stand with law it being in the Case of a County Palatine which hath such a jurisdiction incident to it this Court Ex Officio ought to take notice of the Iurisdiction of the County Palatine and that they have authority to hold pleas 45 Ed. 3. f. 10. 50 E. 3. pl. 1â— 10 H. 6.16 The averment is that the party remains within the jurisdiction of Chester that there may not be intended to be a failer of justice by the parties going out of the Iurisdiction where the offence was done 44 45 Eliz. Crisp and Deâ—â—â— Neither is the plea by the traverse become so vitious as to retain the Iurisdiction of this Court thereby For the County Palatine cannot give up their jurisdiction to this Court as antient Demesn Courts and other Courts may by the mispleading of the parties for their pleading is coram non judice 10 H. 6.13 b. 9 H. 7.12 45 E. 3. f. 7. 22 E. 4.23 31 H. 6.11 Nor doth the traverse here waive all the precedent matter but stands with it although it be made narrower by it but nothing is here waived Dyer 165 Here is an issue in substance which is good although not in the letter and the straightning of it shall not hurt and the Court is neither inveigled nor the party wronged by it Dyer 369 Hob. 119. This traverse binds not the other party to joyn issue upon it but there may be a traverse upon a traverse and he may plead another plea Hob. 18. New mans case Roll chief Iustice In your prescription you have averred that he was an inhabitant but you have not averred that they ought to hold plea of transitory matters if the party inhabit out of the jurisdiction and here the party ought to be summoned and if he dwell out of the jurisdiction what remedy can be had against him then for how can he be summoned And we cannot judge of the jurisdiction but by your pleading Tryall and by your traverse you have tripped up your own heels The reason why transitory actions may be laid in any County is because that otherwise justice might fail for the party may do a fact in one County and then remove to another so here the party may do wrong within the County Palatine and then go out of it to avoid justice At another day Wild argued for the Plaintiff and Shafto for the Defenddant Wild held that the plea was ill 1. In the inducement 2ly It is ill in the substance of it 3ly The traverse is not good The inducement is ill because it doth not confess a conversion but here is a general issue only pleaded 9 E. 4.5 12 E. 4.12 It is ill in the substance because the usage pleaded is against Law and will cause a failer of justice which ought not to be for the Law leaves no person wronged without a remedy 19 E. 3.29 Fitz. Iurisdict 50 E. 3. pl. 1â— 44. 45 Eliz. Crisp and Verols case 2 R. 3.4 Harid and Paytons case 24 Car. 48.2 instit 4. Cook jurisdict 213. 14 E. 4.25 Next the traverse hath waived all the matter pleaded before and because the plea was good before there was no necessity to take it 20 E. 4.2 and the traverse is also too straight for it hath tyed up the matter to Wellington and so he prayed a respondes ouster Shafto on the other side held the plea good and argued much to shew in the jurisdiction of the County Palatine and cited Cook jurisdict f. 219. 22 E. 4.34 per collow Dyer 156. Hill 8 H. 7. rot 228. and he said the plea is good though it be not confined to the inhabitants within Chester for there was no necessity to plead thus and it had been enough to have pleaded generally because this Court takes notice of the jurisdiction of Chester 11 Rich. 2. Fitz. breif and the pleading hath alwayes been in this maner as may appear by the Book of entryes 1 E. 4. f. 11. and this custom by construction of law is necessarily to extend to the inhabitants within the jurisdiction 21 H. 7.40 Dyer 46. Rastall 128 129. the privilege of Chester follows the persons of the inhabitants and so there can be no failer of justice as is objected And for the traverse though it be ill it shall do no hurt in this case to take away the custom for upon the entire record it doth appear that the Action lyes within the jurisdiction and if Iudgement be given here it is coram non judice and so the traverse is nor material 9 H. 7.12 37 H. 6. f. 26. Cooks Mag. Char. cap. 247 Mag. Char. f. 241. Westm I. C. 35. Bract. 260. Hill 7 Iac. Dymocks case in this Court Notice Nicholas Iustice answered the Iustices of this Court are not bound to take notice of the custom of Chester otherwise than as it is alleged Roll chief Iustice The matter is whether we can take notice of your case otherwise than you have pleaded it and your plea is naught and the party may demurr upon it for it appears not whether the custom extends to Wellington where the trover was because it appears not whether Wellington lie within the County Palatine of Chester or no Plea and the Plea cannot be good in part and ill in other part as is supposed Ierman Iustice The Declaration here is good and if the plea be not good to answer it then it is ill Nicholas Iustice The Plea is contrary to law and reason and Common sence and there ought not to be a failer of Iustice Ask of the same mind Confession Roll chief Iustice We must take all the matter as it is pleaded and if the Plea be ill the other party shall not be said to confess any thing And here you have pleaded a plea in Bar viz. Not guilty and you have also Pleaded to
more goods it is not necessary to do it And the law should do wrong if he should not be first satisfied for now he is a lawfull administrator and also a creditor of a higher nature than the other and because he cannot bring an Action against himself for his debt therefore he may by law retain the goods in satisfaction And he may satisfie a debt upon a specialty before a debt due upon a contract although a sute were commenced for the debt due upon the contract so here he may retain the goods Roll chief Iustice Why shall not here the administration purge the wrong which he did as Executor of his own wrong It is true indeed that he shall not abate the writ by taking letters of administration but he may plead this plea in bar of the Action and here it doth not appear but he is rightly Executor Abâ—tement Bar. without doubt the plea here pleaded had been good to a stranger without letters of administration and the law shall supply the retainer to him here and there is no wrong to the Defendant at another day it was moved again and the Court held the plea good and ordered Iudgement for the Defendant nisi Strode against Homes Trin. 1652. Banc. sup Hill 1651. rot 999. STrode brought an Action upon the case against Homes Arrest of judgement in an Action for words for speaking of these words of him in relation of his office he then being Church-warden of St. Clements Parish in Oxford Thou art a cheating knave and hast cosened the Parish of 40 l. Vpon not guilty pleaded and a verdict for the Plaintiff It was moved in arrest of Iudgment that the words were not actionable because here was no special losse alleged by the Plaintiff nor is he in any danger of corporal punishment by speaking of the words Pasc 10. Iac. Hopper and Baker Roll chief Iustice answered the matter is not so much the losse of his office as the losse of his credit in being accompted a cheater At another day Crook Senior moved for Iudgement for the Plaintiff and said the words are actionable for a Church-warden is not meerly a spiritual officer but an officer by the Common Law and also by the Statute Yarly and Ellis case Sir Miles Fleetwoods case Hob. rep Bray and Haynes Crook Iunior on the other side urged that this is not an office of profit but of trouble and burden and no special losse is alleged Roll chief Iustice Officers which have no benefit by their offices have more need to be repaired if they be scandalised in their Execution of them and here the scandal is great losse to an honest man and what other remedy can he have to repair himself Case but by his Action on the case Ierman Nicholas and Ask of the same opinion And so Iudgement was given for the Plaintiff nisi Trin. 1652. Banc. sup VPon an Affidavit read in Court made by divers prisoners in the upper Bench-prison against Coronel Keyes a prisoner that he is very unruly Motion to remove a prisoner out of the upper Bench prison to Newgate denyed abuseth his fellow prisoners it was moved he might be removed to Newgate But Roll chief Iustice answered if he be unruly the Gaoler must put on irons upon him and kéep him safely there for this is no cause for us to remove him for he lyes there under many actions and we must not remove him to another prison Trin. 1652. Banc. sup THe Court was moved that the party might not have a tryal at the Bar untill he had paid costs upon being nonsute in a former action for the same lands Roll chief Iustice He shall not proceed to another tryal Against a trial at the Bar till costs paid upon a former nonsute Costs untill he have paid his costs for by this means we shall incourage men to be vexatious Freind against Baker Trin. 1652. Banc. sup VVIld moved to amend a Record wherein a Iudgement was given in the Common Pleas For amendment of a record denyed after the Record was removed by a writ of Error into the Chequer Chamber the fault to be amended was that there is day given over to the parties from Easter Term to Michaelmas Term and so Trinity Term is left out which he conceived was but a misprision of the Clark and but a miscontinuance in giving a wrong day to the parties 2 H. 7.11 22 E. 4.3 But Roll chief Iustice answered Discontinuance that this is the act of the Court and by your reason you may skip over 3 or 4 Terms one after another without any continuance The giving of a day more than is necessary is no discontinuance but here wants a day which makes it not a miscontinuance but a discontinuance and so was it adjudged 1 Car. at Reading Term. Nicholas Iustice cited 21 H. 6. f. 16. to be adjudged that it is a discontinuance Roll chief Iustice A miscontinuance is where one processe is used for another and so the processe is mistaken but this is a discontinuance and cannot be amended Amendment For this is not upon a writ of Error out of the Common pleas as we supposed it to be and that the Record had been amended there for then we would have advised whether we would amend it here Miscontinuance but it is upon a writ of Error brought in the Chequer Chamber upon a Iudgement given here Brock against Vernon Trin. 1652. Banc sup BRock brought an action of Debt against Vernon as an Executor upon a bond entred into by Vernon unto the Testator of the Plaintiff Arrest of judgement in debt upon a Bond. the Defendant acknowledgeth the bond but sayes that he gave another bond in satisfaction of that Bond unto the Testator which the Testator did accept of in satisfaction Plea Thâ—ng in Action The Court held this plea ill and that the party might have demurred upon it and needed not to have joyned issue and put it to the Iury for it is no good plea to say that one did accept of one thing in Action in satisfaction of another thing in Action and here the Defendant hath confessed the debt and therefore his plea being ill Iudgement ought to be against him and Iudgement at another day was given accordingly Buckstone against Shuâ—lock Mich. 1652. Banc. sup Entred Trin. 1652. rot 177. A Writ of Error was brought to reverse a given Iudgment in the Common Pleas upon an information Error to reverse a judgment in the Common Pleas upon an information for selling of Wine without licence for selling of Wine without licence contrary to the Statute The Error assigned was that the information was brought in the Court of the Common Pleas which is in the County of Midlesex whereas the offence is alleged to be done at Lambeth in the County of Surry which ought not to be as Davisons case is in Hob. rep Roll chief Iustice How do you prove this
professision and cited one Hinkes case where these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the
Attorney of the Common Pleas that was sued in this Court to allow his writ of privilege Motion to allow an Attorneys privilege of the common pleas But Roll chief Iustice bid him plead his privilege for we cannot allow it upon a motion and his shewing of his writ of privilege Whitehead and Buckland Trin. 1653. Banc. sup Hill 1652. rot 121. VVHitehead brought his Action of Trespass against Buckland for taking of his Cattel Demurrer to a replication in Trespass for taking Cattel The Defendant pleads the Stat. of limitations of Actions in Bar the Plaintif replyed that he sued forth an Original within the time limited in the Statute To this replication the Defendant demurs and shews for cause 1. That he saith he hath sued out his Original but doth not say prout pater per Recordum as he ought to do 2ly He doth not plead the continuances upon the Roll Maynard answered that the pleading is good and we cannot take a traverse upon their plea which is surplusage nor is it necessary for us to shew in our plea all the continuances but to plead so much of the Record only as goes in Bar. Plea Roll chief Iustice The plea is plain and it is not necessary to allege the continuances for here is an apparance Postea Sale and Wray Trin. 1653. Banc. sup VVIld moved the Court that the Defendant in an Action of Covenant might be ruled to swear his plea Motion that the Defendant might swea◠his plea. because it is a forein and dilatory plea pleaded to out this Court of its Iurisdiction and to hinder a Tryal for he pleads that he was at Lisbon in Portugal at the day of the payment of the money which he had covenanted to pay Roll chief Iustice you may reply that he was in England Replication and you need not traverse absque hoc that he was in Portugal But the question is whether the plea be forein Traverse and I am of opinion that it is forein and ought to be sworn Howell answered it is not forein for it may be tryed in the County where the Action is brought Plea Roll chief Iustice Let him swear his plea except better matter be shewn Kitchinman Trin. 1653. Banc. sup VPon a Verdict given for the Plaintif in an action of the Case brought for preferring a Bill of Endictment of felony against him Arrest of judgement in an Action upon the case It was moved in Arrest of Iudgement that it was not laid in the Declaration to be done falsly but that the Attorney of the Plaintif hath interlined the word falsly in the Postea 2ly It is not said that the Endictment preferred was delivered to the grand Iury but to the Court. Roll chief Iustice It is said to be preferred malitiose Endictment and it cannot be malitiose except it be also falsly and here is falsly expressed in the beginning of the Record and it is not necessary to say so through the whole Record for the words subsequent are coupled to the precedent And a Bill of Endictment is to be delivered to the Court and the grand Iury receives it from thence Iohnson Launcelot took another Exception viz. That there is a variance between the Venire and the Distringas for in the Venire one of the Iury is called Cargenter Variance and in the Distringas Carpenter Roll chief Iustice Let it be stayed for this fault And let Williams the Sollicitor be committed for enterlining the Postea Commitment But upon a voluntary confession of the fact and submission the Sollicitor was released and only ordered to pay the charge for the motions in the Cause Amendment and the Postea was ordered to be amended by the Paper book Custodes and Troos. Trin. 1653. Banc. sup THe Court was moved to stay Iudgement in an Endictment of perjury found against one for perjury in an evidence given by him in an Action of Trover and Conversion Motion to stay judgement in perjury The Exception taken was that the Oath is not averred to be made concerning the matter in issue in the action so it cannot be such perjury for which an Endictment lies Roll chief Iustice Is the Endictment grounded upon the Statute or is it an Endictment at the Common Law The Councel answered It is an Endictment framed upon the Statute Roll chief Iustice Then it is a material exception but if it had been an Endictment at the Common Law it would have been otherwise for at the Common Law one may be endicted for a false Oath in an Affidavit Endictment Perjury False Oath Therefore let Iudgement stay till the Plaintif move Custodes and Martin and Long Trin. 1653. Banc. sup THe Court was moved to quash two Endictments against Martin and Long Motion to quash two Endictment as Lords of the Manor of Clarkenwell for not repairing the Stocks and Whipping Post and not making of a Pound The Exception was Endictments Stocks Whipping Post that the making the Pound was not a publique thing and therefore an Endictment lies not for not doing it Roll chief Iustice That is true And he took another Exception That the Endictment doth not shew that Martin and Long are Lords of the Leet And if they be but Lords of the Manor and not Lords of the Léet they are not bound of common right to repair the Stocks and Whipping Post and therefore the Endictment must shew how they are bound to do it viz. either as Lords of the Leet or otherwise or else the Parish is bound to do it Custodes and Rickabye Mich. c. 1652. Banc. sup VPon an old rule of this Court made in the beginning of King Charls Arguments and Iudgement whether a pardon for murther was well pleaded The Court was moved to deliver their opinion in the Case of Rickaby that had been endicted for murther and had obtained his pardon whether the pardon was good and to be allowed or that he should be tryed notwithstanding his pardon Roll chief Iustice answered This Case was argued often at the Bar 8 Caroli which was long agoe and before our times therefore let us have books and argue it again for we have yet heard no Arguments in the Case At another day by rule of Court the Case was again moved and argued by Wadham Windham for the Keepers that the pardon was not good nor ought to be allowed because by the pardon murther was not pardoned and in his argument he made these questions viz. 1. Whether the King could pardon murther by the Common Law 2. Whether he might do it by the Law of God 3. Whether he might do it by the Statute 4. Whether the pardon be made good by the non obstante included in it For the first the King ex Officio may pardon Man-slaughter by the Common Law and in some cases he might pardon murther viz. Where there is but only malice implyed in the Murtherer but
Statute of 13 R. 2. C. 9. which is a generall Law and ought to be taken notice of but if not yet the Action is well brought for it is brought for the vexation the Plaintiff was put unto by reason of the presentment and the other matter alleged is but by way of inducement to the Action 2. Car. in Deâ—t and Oâ—ifes case in this court so held and though the conservators had no authority yet the Action lies for the malitious prosecution and for unjustly vexing him and so adjudged Trin. 16 Car. in this Court in Damon and Sheremans case Hales on the other side said that this Court is not bound to take notice that the Lord Maior of London hath this jurisdiction of conservatorship for the Statute which gave it him is a particular Law touching him only and so not to be taken notice of without it be shewn and then if he have no such authority all the proceedings against the Plaintiff are void Roll chief Iustice An Action upon the case lies for bringing an appeal against one in the Common Pleas though it be coram non judice Case by reason of the vexation of the party and so it is all one whether here were any jurisdiction or no for the Plaintiff is prejudiced by the vexation and the conservators took upon them to have authority to take the presentment And I hold that an Action upon the case will lye for maliciously bringing an Action against one where he had no probable cause and if such Actions were used to be brought it would deter men from such malitious courses as are to often put in practice Sherecroft and Weekes Trin. 1953. Banc. sup SHerecrost brought an Action upon the case against Weeks Arrest of Iudgement in an Action for words for speaking these words of him He meaning the Plaintiff got Mary Nab with Child and the Child is his and I have tryed it with a sieve and a pair of sheeres It was moved in arrest of Iudgement that the latter words are insensible and so the Action not maintainable to which it was answered that the first words are Actionable it matters not though the latter words be nonsence because they have no reference to the former words and therefore shall be rejected as sencelesse But Serjeant Barnard on the other side said the latter words do take off the force of the former words as the case is 4. rep f. 19. 2ly It is not said here when he got her with Child Nor 3ly Doth he aver that there was any such person as Mary Nab. Roll chief Iustice Case The Action doth well lye for the former words are positive scandalous words and the subsequent words are not material and if they be then they are in confirmation of the former for it seems he put confidence in the sieve and the sheeres and that made him speak the words and it matters not whether his confidence be true or false Therefore Iudicium nisi pro Querente VVeldon and Strudder Trin. 1653. Banc. sup IT was moved to the Court that the Plaintiff after he had obteyned a verdict and before Iudgement entred dyed Motion to enter the death of the Plaintiff on the Roll. and prayed that this might be entred upon the Roll but the Court denyed it and said it could not be VVhitehead and Buckland Trin. 1653. Banc. sup THe case of Whitehead and Buckland was again spoken unto Demurrer to a replication in Trespass by Original which was this Whitehead brought an Action of Trespasse by original writ for taking his Cattel the Defendant pleaded the Statute of limitations of Actions in Bar the Plaintiff replies that he took forth an original writ against the Defendant for this Trespass within the time limited by the Statute and upon this replication the Defendant demurred and for cause shews that he doth not shew what writ he sued forth as he ought to do otherwise it cannot be known whether he be rightly thereby intituled to his Action or no. 2ly He hath not shewed the continuances upon his proceedings and so it cannot be known whether his Action be discontinued or no that if it be we may take advantage thereof 3ly He doth not say that he hath taken out an Original prout apparet per Recordum as he ought to do for we do not agree the writ that he pleads he hath taken out 4ly He hath concluded his plea so that it amounts to a new assignment and hinders us from objecting against it by way of rejoynder and he joyns an issue of his own head of a matter not alleged before and 5ly The Action is for a Trespass done in 1645. and yet he concludes it to be contra pacem publicam which being in the late Kings time could not be but ought to have been contra coronam et dignitatem nostram Latch on the other side said that both parties agree to the Original and the disagreement is only in the time of the execution thereof and it is not necessary to say prout patet per recordum nor is it necessary to shew the continuances of the process for this would make the Record too long and here is no hinderance but they may rejoyn if they have cause Pâ—â—a Error Roll chief Iustice As to the first Exception it is not necessary to set forth the particulars of the writ and if the writ be not good you may have a writ of Error and for the second exception the plea is good without shewing the continuances and there is no inconvenience by not setting them forth and we will intend that all is rightly done because you have appeared and you are not hindred from replying but may do it if you will and have cause and the Record here shews that you have appeared to this writ but it is not good to conclude the plea super totam materiam as you have done for by this he is hindred from replying and then he hath good cause to demur because you have concluded him and what say you to that Latch The party may strike out the words Et querens similiter Roll chief Iustice He cannot strike out that which belongs not to him Replication Demurrer and you cannot go back and the other is compelled to demur Therefore Nil capiat per Billam nisi c. or waive the Demurrer Postea Trin. 1652. Banc. sup IT was said in the case of Homes and Bingley Who may make a lease to try a title that Tenant at will may make a lease for years to try a title of land and so may a Copy-holder Q. Trin. 1652. Banc. sup BY Roll chief Iustice What plea an Attorney may plead without a special warrant An Attorney who hath warrant to appear for his Clyent may plead for him without warrant But the Clarks in Court said he may plead no other plea without a special warrant but a non sum informatus ideo Q. Peck and Ewre Trin. 1653.
assigned in the Declaration was not well assigned for it recited another promise than upon which the Plaintif had declared for he declares of a promise made to give 300 l. in mariage to the Plaintif with his Sister E. and he assigns the breach in not paying the 300 l. unto the Plaintif so that the breach doth not answer the promise for if the money be paid to the wife which for ought appears may be the promise is not broken though she be maryed But Hale 〈◊〉 other side said that it is all one as it is alleged and that it is equâ—â—â—â— and reciprocal and here is a refusal to pay the money assigned for a breach and this is a good breach Roll chief Iustice I suppose it is all one as if he had expressed the very words of the promise for the Husband is to give the acquittance for the money Acquittance and the moneys are to be paid unto the Husband and the Verdict finds that they are not paid And if moneys be due to a Feme upon a Contract dum sola suit and after and before the payment thereof she marry the moneys are to be paid to the Husband and not the wife Payment and the moneys here are intended to be paid for a mariage portion which doth properly belong to the husband and they were not to be paid unto her before the mariage and it is all one in this Case as if the Plaintif had said that the Defendant had not paid the moneys to the Husband with his Wife in mariage Curia ad idem The Rule thereupon was that the Plaintif should take his judgement nisi Hicks and Joyce Mich. 1653. Banc. sup AN Action of the Case was brought for these words Arrest of judgement in an Action for words She meaning the Defendant is a whore and I will prove it and her plying place is in Cheapside and she gets 40 s. a night by playing the whore It was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and very general words and may receive divers constructions and at the first moving the judgement was stayed but the matter being moved again at another day Roll chief Iustice said that these words import more than the bare calling of a woman whore by reason of other particular circumstances set forth to aggravate the matter and therefore let the Plaintif take her Iudgement Townesend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. AN Action upon the Case was brought by a Churchwarden of a Parish Arrest of judgement in an action for words for these words spoken of him Thou dost make Lowns i. e. taxes or assessments thy self and makest 5 quarters in the year and dost cheat and cozen the Parish It was moved in Arrest of Iudgement that the words are not actionable because they are spoken of a Churchwarden which the Common Law takes not notice of And 2ly In that it doth not appear they were spoken of him in relation to his being a Churchwarden But it was answered That a Churchwarden is an Officer of Trust and taken notice of by the Common Law and so was it adiudged in Stroade and Homes his Case in this Court and the words must be intended to be spoken of him in the relation to his Office for that is implyed by his making of Lowns and his couzening the Parish The rule was for the Plaintif to have his judgement Mich. 1653. Banc. sup AN Endictment of one endicted for refusing to serve in the Office of a Headborough was quashed Endictment quashed Addition because it did not shew that he was chosen to the 〈◊〉 and because the party endicted wanted an addition Mich. 1653. Banc. sup THe Court was moved to discharge one Cullins that was arrested as he was attending the Court to give testimony as a Witness in a Cause To discharge one arrested attending th' Court as a Witness Supersedeas Attachment and for an attachment against the parties that did arrest him German Iustice absente Roll chief Iustice Take a Supersedeas and let the parties shew cause why an Attachment shall not be granted against them that arrested him Hanslop and Johnson Mich. 1953. Banc. sup THe Court was moved to change the venue in an Ejectione firmae laid in London because the Lands in Question did concern the Poor of London To change the Veâ—ue in an Ejectione firmae and therefore it was supposed there could not be an indifferent Tryal in London for by consequence in that it concerns the Poor it concerns the whole City But Roll chief Iustice answered the Action is local Action local Venue and it cannot be removed except you can draw it from thence by your Plea Boyle and Scarborough Mich. 1653. Banc. sup Hill 1652. rot 226. AN Action of Debt was brought by Boyle against Scarborough Error in reverse a judgement in Debt upon a Promise wherein the Plaintiff did declare that the Defendant in consideration that the Plaintiff would forbear to sue forth a ne exeat regnum against the Defendants Son who did owe unto the Plaintiff five hundred pound did assume and promise unto the Plaintiff a certain sum of mony expressed in the Declaration upon non assumpsit pleaded and a verdict and a judgement given for the Plaintiff the Defendant brought a Writ of Error and it was assigned for Error That there appears no consideration to ground the promise upon so no ground of Action for he doth not shew that he had done any thing in prosecuting the Writ of ne exeat regnum and Rolyer and Langdales Case 1650. in this Court was cited and Hob. 216. Bedwell and Cottons case and there is no such Writ in the Register as a ne exeat regnum and therefore there could be no forbearance to sue out such a Writ but there is a Writ to give security not to go out of the Realm to the publique prejudice of the King and his people and here is no such matter expressed but only that his Son owed him 500 l. Nat. Brev. 85. was agreed and it was farther objected by Wild who argued against the Iudgement that though the consideration should be good yet the replication is not good and sufficient to tye the second Writ to the first for it is not said that the second Writ is pro una eadem causa and so it is incertain Br. Trespass 85. 9 H. 6 and there may be several promises made in one day and if the replication is good yet the rejoynder is not good 19 H. 8.43 for he only admits that he being a Knight is the same person which was sued by the name of Esquire Hob. 171. Stukelyes Case And here is a judgement by a Nihil dicit and no warrant of Attorny for it is Latin and so it is nul it being since the late Act made for the proceedings in Law to be in English Latch
seems should make the Law in this Case Dyer 33 H. 8. is the express case Attorney 20 H. 6.32 The Court advised At another day Roll chief Iustice said That the opinion of the Court was that an Attorney may plead his privilege by an Attorney and there is no inconvenience follows by doing it but it is true the Presidents are both ways and it is not contrary to any thing he hath done and it may be he is sick or hath business in another Court where he is necessarily attend Therefore let his plea be allowed nisi Leake and Reynolds Hill 1653. Banc. sup LEake brought an Action of Debt upon an Obligation against Reynolds Special verdict in debt upon a bond The Defendant pleads non est factum the Iury upon issue joyned find a special verdict to this effect That the Plaintifs Declaration is upon an Obligation dated the 24 day of the month and they find that the Obligation was sealed and delivered the 27 day of the month but bears date the 24 day and whether this shall be accompted the same Obligation upon which the Plaintif declares or not is left to the Court to determine Green for the Plaintif said that this case is the same with Goddards case and there it was adjudged a good deed 12 H. 6. f. 1. Dyer 247. and in the end of Goddards case the case in point is adjudged Roll chief Iustice This is a plea in Bar Plea and not in abatement therefore take your judgement Hill 1653. Upper Bench. BY Roll chief Iustice What is not slanderiâ—g a title If one hath colour of title to land an Action of the Case will not lie against him for saying I have better title to the land than you though his title be not so good as the others title is Nota. VVingfield and Valence Hill 1653. Banc. sup Hill 1650. rot 1409. LAtch moved to have restitution of monies out of the hands of a Sherif For resti ution of monies in the Sherif-hands which he had levied upon an execution taken out of this Court because it issued forth erroniously for before the Execution taken forth the Defendant brought his writ of Error in the Chequer Chamber to reverse the judgement and the Record was removed thither and although the late Statute say that a writ of Error shall be no supersedeas to stay execution yet the Record being removed into the Exchequer Chamber no execution can be granted out here for here is no Record to warrant it Roll chief Iust The case being moved again at another day till when the Court would advise said The Record is removed by a writ of Error in the Exchequer Chamber and is not now before us nor was at the time when the Execution issued forth and this being after a verdict and a judgement the writ of Error is no supersedeas and so it is mischievous both ways Mischief Supersedeas but how can we help it yet take a supersedeas quia erronice to supersede the execution for it was ill awarded and take the moneys out of the Sherifs hands Nota. The Protector and Captain Streeter Hill 1653. Banc. sup CAptain Streeter was brought in Court by habeas Corpus For delivery of a Prisoner appearing upon a Habeas Corpus and upon the return read and filed it appears that he was committed by an Order of Parliament for publishing scandalous and sedilious books Twisden moved that the prisoner might be bailed because that the Parliament is now dissolved and by consequence the Order by which he was committed is of no sorce Mr. Attorney General on the other side urged that the Parliament was not dissolved but only the meeting of those persons in Parliament was dissolved for the Parliament by the antient Law is to be every year so that this is but in effect an adjournment and not a dissolution and besides this matter for which the prisoner stands committed cannot be here inquired of and so the cause of his commitment shall be intended to be good and the Parliament may commit without shewing the cause of the commitment and this commitment may be in order to his Tryal and the Prisoner is not without remedy for he may apply himself to the supreme Authority to whom the Parliament have resigned their power Twisden for the prisoner confessed that this Court cannot be Iudge of the Parliament but this Order by which he is committed differs from an Act of Parliament for this is temporary and determineth and although the authority of Parliament ceaseth not yet a particular Parliament may be dissolved as this was Wad Windham When a Parliament is dissolved the procéedings there are determined Flowrdews case 1 H. 7. the Latine case and the Parliament is now dissolved and not adjourned and a Parliament dissolved is not like the Courts of Iustice here in the Vacation time Wild This case is not like to the case where this Court remaunded a prisoner committed by the Parliament sitting the Parliament for the prisoner here is coram Protectore who may deliver him Captain Streeter Mr. Attorney labours to afperse me but shews no cause or crime for my commitment and I am here before the Protector in his own Court Attorney General Only the persons and their convention is dissolved but not the Court no more than this Court is by the demise of the King or in the Vacation time and I must refer it to the Court how far you will intermeddle in this case and this Order by which he stands committed may be his judgement there and then he cannot be delivered and I know no difference betwéen an Order and an Ordinance of Parliament and the stamp and authority of Parliament is upon this order and if the prisoners Counsel say true then he may have an Action of false imprisonment against his Gaoler Twisden Here is no Order of the Parliament returned but it expresseth that he was committed by the Speaker by vertue of an Order of the Parliament Roll chief Iustice We examine not the Orders of Parliament but the question is whether the Order doth now continue Order of Parliament Dissolution and I conceive it is determined by the dissolution of the Parliament and so would it have done by prorogation of the parliament because there is another Session and we can judge no otherwise of Orders of Parliament but by the words of them Ask Iustice If one that is committed by Order of Parliament cannot be delivered until another Parliament the peoples liverty will be lost for there may not be a Parliament in many years Roll chief Iustice A new Parliament hath not reference to the old but it is a new Court created upon new Summons and why may not the Prisoner be bailed without these disputes although he may apply himself elsewhere But the Court would advise because they perceived the prisoner stubborn At another day Mr. Attorney upon the prisoners appearance again upon his Habeas
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
Common Councel man of London and here the party hath an imployment for his life Imployment for life though he have not a freehold in it and there is a setled profit accruing to him and so prayed he might be restored Wild on the other side held that a Mandamus lies not in this case and said this case differs from the cases put on the other side for the Schoolmaster Durante beneplacito though he have a freehold yet it is but durante beneplacito and he is in truth no more than a servant and in all the cases put on the other side the publique is more concerned than in this case 11 H. 4. f. 47. A Schoolmaster hath no freehold as Skreen there held and it is not like the case of a Churchwarden Churchwarden which is an Office that the common Law takes notice of 12 H 7. and a Town Clark is a publique officer of the Town and Boremans case is very like to this and the office of a high Steward is a publique office and so is a Steward of a Leet and one may put away a servant retained for his life and so may the Schoolmaster here be discharged and this School is a private School and is not a Corporation as Westminster School is Glyn chief Iustice by the same rule that the Schoolmaster should be restored may ever Schollar claim to be restored and I conceive the Visitors may remove the Master of the School if he observe not the rules for government of the School and it seems as reasonable for them to turn out the Masters as to receive them into the place But let the whole matter be referred to the Justices of the Assize one of whom viz. my Lord chief Iustice St. Iohn Referrence is the Chancellor of the Vniversity of Cambridge where the School is Fowke and Prescott Trin. 1655. Banc. sup FOwke brought an Action upon the case upon a promise against Prescott The Case was this Arrest of judgement in an Action upon the case upon a promise Prescott being a Coachman did by careless driving of his Coach break a pipe of wine of Fowkes which lay in the street whereby much of the wine ran out and was lost Fowke apprehends the Coachman who thereupon promiseth that if he would for bear to sue him for the wine that he would pay him as much as he had damnified him and for breach of this promise he brings his Action and obtains a verdict against the Defendant It was moved in Arrest of judgement 1. That the Plaintif had not averred how much the wine was worth that was spilt and so he could not tell what satisfaction to make the Plaintif for it Averment for he knows not the value Request 2ly Here doth not appear to be any request made for the satisfaction by the Plaintif Serjeant Twisden answered Here doth appear to be an apparent damage and he hath not satisfied the damage we have laid in our Declaration nor hath the Defendant pleaded any tender of damages at all Tender of damages Implication Notice and the Iury have found the damages 2ly We say that we have forborn to sue him and this implies no satisfaction made at the time of the Action brought Alleyne on the other side The Plaintifs Declaration doth not intitle him to the Action and the finding of the Iury cannot make this good Glyn chief Iustice Both parties did see the wine and the Defendant is bound to take notice of the damage and the Plaintif is not bound to give him notice Iudgement and the Iury hath made it certain Therefore let the Plaintif have his judgement Dod and Herbert Trin. 1655. Banc. sup DOd brought an Action of Debt upon an Obligation to stand to an award Demurrer in debt upon an Obligation to stand to an Award Satisfaction Charges Submission In Curia prolata against Herbert the Defendant pleaded nil debet and upon a Demurrer these exceptions were taken to the Award why it should not be good 1. That here is 100 l. awarded to be paid to the party and it doth not appear that it is to be paid unto him in satisfaction of the wrong done unto him 2ly Here is 8 l. ordered to be paid for charges and expences which thing is not submitted unto by the parties and so no Award ought to be made for them 3ly The Action here is meerly grounded upon the Award and therefore the award ought to have been brought into Court which is not done for ought appears here Wild on the other side answered that upon the penning of the whole Award it appears that the 100 l. is to be payd for the wrong done to the party by the speaking of the scandalous words and the Award is set forth to be made de et super praemissis De super praemissis which makes it good as my Lord chief Iustice Rolls opinion was upon the first opening of the Record and so was Burbidges case 16 Car. And as is the second Exception he held that the 8 l. awarded to be payed for charges was within the submission for the Arbitators have power to allow charges And as to the last Exception he said it is not necessary to produce the Award in Court Glyn chief Iustice It is to be intended that the 100 l. is to be paid for the wrong done Intendment and the 8 l for costs is as well within the submission as the other and the Award is recited and it is said to be made de et super praemissis The only question is whether the Award ought to be produced in Court and I conceive it is not necessary to do it although he must plead the Award in writing for the Action is not brought upon the Award but upon the submission for the Award is but the inducement and the Court hath nothing to do with the Award Submission Inducement but to see whether it be in writing or no For a Deed that must I confess be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in your pleading But speak to it at another day at which time the case being only put Glyn chief Iustice said if an Action of debt be brought upon an Obligation Where a thing must be produced the Obligation ought to be produced and in all other cases where things cannot be demanded but by Deed otherwise is it if they may be demanded either by Deed or without Deed but here is no Deed in the case for an Arbitrement under seal is no Deed the arbitrement may be made without a Deed Deed. Arbitrement Writing Iudgement nisi therefore it is not necessary to be produced in Court for it is but a writing under hand and seal Iudicium nisi pro quereute Maynell and Mackallye Trin. 1655. Banc. sup MAynell brought an Action upon
Letter of the Statute and here was no weapon drawn for the sword was in the scabbard which is no more than a staff in a mans hand Stat. 5 E. 6. C. 4. and it is like to a Pistol uncockt and if the sword had been drawn it would not have altered the case because it was not in Horwoods hand who was slain but in anothers and you cannot extend the Statute further Glyn chief Iustice Will you have it argued any more Finch No. Glyn chief Iustice I have considered of the Verdict and consulted with the Statute and advised with all the Iudges and they are of mine opinion This is a good Law and to be interpreted strictly yet I hold the prisoner is not within it for the scope of the Statute appears by the preamble the body and saving of it which do all confirm my opinion My first reason is because I find that the intent of the Statute is against sudden killing but here was nor a sudden killing and the Statute takes not away the Clergy from all manner of Manslaughter and here was a Trespass and an imprisnoment acted against the prisoner before he killed Horwood and so the act was not suddenly done 2ly The body of the act seems to mean that there ought to be malice in the case and it doth not intend we should stick to the very words of it and here the party slain might have forséen the danger and defended himself 3ly The proviso excepts divers particulars out of the Law and the word killing is only in the proviso so that there is provision made how the Statute shall be interpreted viz. That it must be sudden killing which is not so here for there so provocations and time intervenient betwixt them and the stabbing and the Verdict finds no praeconceived malice and the Statute extends to no other killing by the proviso And if one be assaulted by Theeves which have no sword drawn and the party assaulted stabs one of the Theeves he is not within the intent of the Statute although he be within the words of it or if one be assaulted in his house and the Assaultor hath no weapon drawn and one of the Assaultors be shot yet the party assaulted is not within the Statute 15 Car. in Davy and Williams case it was adjudged by all the Iudges that he that killed another by throwing a Hammer at him was not within the Statute because there was a preceding provocation of him And iâ— two assault a third person and one of them strike the third person and the third person kills the other that did not strike him I do not conceive he is within the Statute for it is the assault of both and shall also be adjudged the striking of both Ask Justice held he was within the Statute because it was not unlawfull to come to arrest him and here was no weapon drawn and so it was adjourned to another day At which day Buckner was again brought to the Bar Ask Justice repents the special verdict made the question whether this fact of Buckner be within the Statute of 1 Iac. enacted against stabbing and he argued that it was and that Buckner could not have his Clergy because the Statute shall be taken beneficially for the Commonwealth and not for the prisoner who is a particular person and the intent of the Statute is to take away the Clergy for some felony Neither by the common Law nor by the Law of God is there Clergy given for killing a man and it was the Popish power that introduced the Clergy to be given for Manslaughter and also for murther in diminution of the Common Law and of regal power yea and of the Law of God also and if a woman kill one she shall not have her Clergy but be hanged which shews that by the Common Law the Clergy was not given for Manslaughter And by the Law of God I find no difference betwéen Murther and Manslaughter for it makes no difference betwéen hot blood and cold blood as we do now distinguish and every word in the Statute me thinks doth take away the Clergy by way of argument even from the title of the Act to the very end of it and here is a great sin to be punished and great inconveniences would follow to admit of the Clergy in such cases as this is and here was a sudden killing as the act expresseth for it was done with a dagger which was not séen but suddenly drawn out of a pocket and no weapon was drawn against him for the provocations alleged they cannot amount to the drawing of a weapon or such a provocation as the Statute intends for all the acts done by Horwood amounted but to a Trespass and cannot be such a provocation as should cause Buckner to fear his death for no violence was used to his person by striking or drawing of a weapon or other ways and the sending for Bailifs to arrest him cannot be such a provocation as the Statute intends which is to put the party in fear of his life and the party knew that Horwood came with an intent only to arrest him and not to kill him nor did the party slain do any thing against Buckner to provoke him and there is by presumption of Law a prepensed malice in Buckner to kill Horwood which is séen by his sudden manner of stabbing him and Davye and Williams case urged on the other side is not like to this case I grant if one kill a Thief suddenly it is not within the Statute for such killing was never intended to be prevented by it The worst words one man can give another are not a sufficient provocation within the Statute for speaking of words doth much differ from drawing of a weapon Nor is this a killing se defendendo or by misfortune but a killing at the Common Law and so the Clergy is taken away by the Statute and those of Serjeants Inne in Fleetstreet amongst whom are Barkly and Foster and Roll who have been Iudges are of my opinion Glyn chief Iustice held it not within the Statute he argued long much to the effect as formerly but having taken cold I could not distinctly hear him Adjourned This Case was again argued Trin. 1656. to enform Iustice Warburton who was called to that Bench after the former arguments and opinion of the Court delivered much to the same manner as formerly By Finch for the prisoner and Baldwin for the Protector and thereupon my Lord chief Iustice Glyn and Iustice Warburton were of opinion against Iustice Aâ—k and so judgement was given for the prisoner that the stabbing was not within the Statute but was only felony at the Common Law and the prisoner was admitted to his Clergy and burnt in the hand accordingly VVilliamson and Coleman Mich. 1655. Banc. sup VPon evidence given in an Action of Trespass betwéen Williamson and Coleman at the Bar Iust fication in Trespass It was said by Glyn chief Justice that if one
288 289 428 C. 2. 446. G 1 Gaol vid. Prison 2 Good behaviour Where one may be bound to the good behaviour and where not p. 16 C. 2. 299 C. 3. 3 Grant What things shall passe by a grant and what not p. 68. p. 78. 203. How the words in a grant shall be interpreted 211 C. 1. What grants are good and what not 252 266 267 c. 4 Guardian Who may be a Guardian to an Infant and how to be authorised and who not 369 C. 4. 456 C. 3. How and where a guardian may be discharged 456 C. 1. H 1 Habeas corpus Where a habeas corpus lies and where not 128 C. 4. 173. C. 3. 147 C. 3. 182 C. 1. 230 C. 3. 239 C. 2. 261 C. 3. 285 286 322 C. 1. 397 C. 1. 397 398 418 C. 4. 432 C. 1. 433 C. 4. 2 Habere facias possessionem What writ of habere facias possessionem is good and what not 238 C. 1. Heir Where a man shall be said to be an heir and where not 307 308 309. 4 Highway vid. way 5 Homage 6 Honours Of the creation of honours and privileges belonging to them 252 253 254 372 C. 1. 452 C. 1. J 1 Jeofails VVhat things and faults in pleading are helped by the Statute of Jeofails p. 70 C. 1. vid. Stat. 151 206 C. 1. 218 C. 2. 223 C. 1. 2 Imparlance VVhere an imparlance may be granted where not 367 C. 2. 3 Implication VVhere a thing may be supplyed by implication and where not 53 C. 1. 251 C. 2. 428 C. 1. 4 Imprisonment For what causes one may be imprisoned and for what not p. 16 C. 2. 382 C. 1. VVhere an action of false imprisonment lies and where not 454 C. 3. VVhat shall be said a lawfull imprisonment and what not p. 90 C. 3. 399 C. 1. 5 Impropriation 6 Infant What acts of an infant are good and what not 121 C. 2. 208 C. 4. 318 C. 1. 472 C. 1. How an Infant may sue and be sued and how not 369 C. 4. 400 C. 2. VVhat acts shall bind an Infant and what not 246 C. 1. Inspection of an Infant 451 C. 2. 456 457 472 C. 1. 7 Information The difference between an information and an endictment 217 C. 2. For what things an information lyes and for what not and where and where not 217 C. 2. 245 246 417 C. 1. 430 C. 2. In what Courts an information is to be preferred and in what not 340 C. 1. 8 Inheritance Who may inherit lands and who not 139 C. 1. 9 Injunction VVhere an injunction out of the Chancery is not to be admitted to stay proceedings at the common Law p. 27 C. 1. 10 Inquisition VVhat shall be a good inquisition what not p. 40 41. p. 75 C. 2. VVhere an inquisition may be quashed and where not 285 C. 2. 11 Intendment Where things shall be supplyed by intendment and where not p. 30 31 43 C. 1. 58 C. 2. p. 59 C. 2. p. 78 119 149 205 260 C. 2. 292 C. 1. 293 294 404 C. 3. 421 428 C. 3. 466 C. 1. 12 Interest Where one shall be said to have an interest in a thing and where not 348 C. 1. 428 C. 1. 13 Interpretation How words shall be interpreted vid. words How Statutes and Ordinances shall be interpreted vid. Statutes and Ordinances 14 Issue What shall be said a good issue and what not p. 70. 113 C. 1. 151 172 C. 2. 198 C. 2. 210 211 239 C. 1. 378 C. 1. How the general issue is to be taken upon the meal act 378 C. 1. Where one may joyn issue and where not 401 402 477. 15 Issues Where the Court will discharge issues where not 157 C. 1. 186 C. 2. 16 Iudgement How Iudgements ought to be entred p. 1. 2. 208 C. 2. 229 C. 2. 251 C. 2. 283 C. 1. 399 C. 2. 130 C. 2. Difference between a Iudgement in an action of trespass vi et armis and a judgement in an action upon the case and the reason of it p. 3. Where a judgement may not be affirmed 451 C. 5. For what causes judgements may be arrested and for what not p. 12 C. 2. 19 C. 1. p. 38 C. 2. p. 58 C. 2. p. 64 C. 1. p. 69 C. 1. p. 75 C. 1 2. p. 80 C. 2. 93 94 95 C. 1. 106 C. 2. 108 C. 1. 117 118 129 130 131 133 C. 3. 134 C. 2 4. 136 C. 1. 138 C. 1. 146 C. 1. 150. C. 3. 150 151 152 153 153 C. 1. 156 C 1. 158 C. 2. 159 C. 1. 162 C. 1. 162 C. 3. 163 C. 1. 169 170 172. C. 2. 194 195 203 C. 1. 206 C. 2. 208 C. 4. 217 C. 1. 229 C. 3. 137 C. 2. 164 C. 3. 235 C. 1 2. 261 C. 1. 263 C. 2. 263 C. 3. 264 C. 1 2. 273 C. 4. 274 C. 1. 277 C. 2. 280 C. 2. 283 C. 2. 295 C. 2. 296 C. 2. 297 C. 1. 297 C. 3. 298 C. 2. 299 C. 1. 300 C. 3. 303 C. 1 3. 304 305 310 C. 1. 338 C. 1. 342 C. 2. 349 350 352 353 358 C. 3. 360 361 362 C. 3. 364 C. 2. 365 366 C. 1. 368 369 370 C. 3. 371 C. 4. 272 C. 3. 374 C. 2. 378 379 379 C. 1. 381 C. 2. 387 C. 3. 388 389 393 C. 3. 394 C. 2 3. 397 C. 3. 398 399 400 C. 4. 404 C. 3. 405 C. 2. 411 C. 1. 411 C. 2. 416 C. 2. 424 C. 3. 425 C. 3. 426 C. 2. 427 C. 1. 428 C. 1. 429 C. 2. 435 C. 2. 436 437 438 455 C. 1. 458 C. 1. 459 460 460 C. 2. 461 C. 2 3. 463 C. 1 2. 465 C. 2. 466 C. 1. 471 C. 1. 472 C 2. 473 474. 474 C. 1. 481 C. 1. 482 C. 1. 483 C. 2. What matters may be moved in arrest of Iudgment and what not p. 58 C. 2. 99 100 102 C. 2. 102 C. 2. 109 C. 2. 105 C. 1. 184 C. 1. 185 C. 1. 207 C. 1. 213 C. 1 2 3. 215 C. 3. 216 C. 1. 219 C. 3. 220 C. 1 2. 221 C. 1 2 223 C. 1. 231 C. 1. 231 C. 2. 232 C. 3. 245 246 255 C. 3. 256 C. 2. 256 C. 3. 260 C. 1. 296 C. 1. 322 C. 4. 323 C. 1. 326 C. 1. 328 C. 1. 230 C. 3. 335 C. 2. 336 C. 1. Where Iudgement may be given in part only and where not p. 22 23 175 C. 1. 210 C. 1. 247 C. 2. 341 C. 5. 342 C. 1. Where no Iudgement can be given p. 34 C. 1. 75 76 90 C. 2. 124 C. 1. 136 C. 2. 227 C. 2. 343 C. 3. What Iudgement is well given and what not p. 29 30. p. 69. p. 84 C. 1. 84 85 88 C. 1. 94 95 101 104 C. 1. 109 110 121 C. 2. 122 C. 1. 124 125 C. 2. 127 C. 1. 148 C. 2. 164 C. 2. 167 C. 2. 194 C. 2. 200 C. 2. 225 C. 1. 225 C. 2. 285 288 C. 1. 292 C. 1. 316 C.
1. 327 C. 1. 329 330 346 C. 3 385 C. 2. 386 C. 3. 400 C. 2. 406 C. 416 C. 1. 425 C. 2 435 C. 1. VVhere a Judgement may be reversed in part only and where not p. 121 C. 2. Judgement against an Attorney for false practice 483 C. 1. Where there ought to be a special judgement and where not 287 288 299 C. 2. VVhere and for what a Iudgement may be reversed by a writ of Error and where not 217 C. 1. 290 C. 2. 471 C. 2. 476 C. 1. 17 Jurisdiction vid. Courts VVhat Iurisdiction Iustices of Assise and Oyer and Terminer have and what not 430 C. 2. 18 Iury. Where one may try a cause twice and where not p. 34 C. 1. 232 C. 3. 445 C. 1. VVhere the panel of the Iury may be quashed and where not 233 C. 3. Of what matters a Iury may enquire and of what not 472 C. 1. VVhat things the Iury may do by leave of the Court. 448 C. 1. VVhere the Sherif shall not retorn the Iury. 477 C. 2. 19 Iustice of Peace vid. Peace 20 Iustification VVhat shall be said a good Iustification by way of plea vid. Plea VVhat things one may justifie the doing of and of what not 470 C. 1. K King Of the duty of a King 40. Of the Kings Prerogative and what privileges he may have thereby and what not p. 40 41 266 267 c. 375 376 377. VVhat the King may grant and what not 252 266 267 c. 375 376 377. VVhat grants of the King are good and what not 266 267 c. VVhat things the King shall be said to be intitled unto and what not vid. Title L 1 Latitat The nature of a Latitat 156 C. 4. 2 Law Of what things the Law takes notice of and of what not p. 55. The Laws in Ireland the same with the Laws in England 386 C. 2. VVhat things are recoverable at the Common-law and what not vid. Recovery VVhere wager of Law lies and for whom and where not 199 C. 1. 322 C. 2. VVhat By-law is good and who it binds and who and what not vid. By-law 3 Legacy VVhere and in what orders Legacies are to be paid and where not p. 37 38. p. 54 55 56. 4 Lease From what time a Lease for years shall be said to begin 118 119 188 189 204 205. VVhat shall be said a good Lease at will and what not 397 C. 3. What shall be said a good Lease and what not 188 189 204 205 315 316 357 C. 1. 380 C. 1. 383. By what Acts a Lease at will may be determined or forfeited and by what not 363 C. 2. 446 C. 2. 5 Levari facias vid. Execution Where a Levari facias lies and of what and where not 69. 6 Licence Where one must shew a Licence for doing of a thing and where it needs not p. 65 C. 2. 156 C. 2. 166. What shall be said a good Licence and what not 156 C. 2. 7 Livery and Seisin What Livery and Seisin is good and what not 119 284 285 363 C. 2. 8 Limitation What shall be a good limitation of an Estate and what not 240 274 C. 2. 294 325 326. 9 Local and Transitory What Actions and things are local and what transitory p. 107 C. 2. M 1 Maintenance What shall be said Maintenance and what not 184. 2 Mandamus In what cases a writ of Mandamus lies and in what not p. 7 8 C. 3. 299 C. 4. 346 C. 2. 355 C. 1. 451 452 453 457. 458. 3 Manslaughter VVhat shall be said Manslaughter and what not 337. C. 1. 4 Mariage To whom the Mariage of persons belongs and to whom not 227 C. 4. 5 Melius inquirendum Where a Melius inquirendum lies and where not 461 C. 1. 4 Maxime Maximes of Law are not to be broken 149. 6 Merger Where a thing may be said to be merged in another thing 347 348. 7 Miscontinuance vid. Process 8 Monstrance del faits c. Where Deeds Letters Patents are to be produced in Court and where not p. 15 C. 2. 264. C. 1. 9 Motion What Motions are to be made in Court and what not 135 C. 3. 386 C. 5. What things the Court will take notice of upon a Motion and what not 177 C. 1. 373 C. 1. 387 C. 4. 464 C. 3. 10 Murther What shall be said Murther and what not 364 C. 1. N 1 Negative pregnans Where a plea conteynes a negative pregnans and where not p. 66 C. 2. 309 C. 1. 1 Ne exeat regnum Where a Ne exeat regnum lies and where not 395 396 440 c. 2 Nomine poenae The nature of a Nomine poenae and how it is to be demanded and recovered p. 4. 3 Non obstante How Non obstantes shall be taken to inure and how not 375 c. 4 Non-sute VVhere the party shall be non-sute and where not 238 C. 2. 449 C. 4. 5 Notice Where notice ought to be given of a thing and where it needs not and what is a good notice and what not p. 13 C. 1. p. 30 31. p. 53 C. 1. p. 57 C. 1. p. 61 C. 1. p. 74 C. 2. 100 C. 2. 172 C. 1. 184 C. 1. 187 263 C. 3. 273 C. 3. 295 C. 2. 303 C. 3. 213 214 342 C. 2. 386 C. 3. 458 C. 1. Of what Officers the Court of the Upper Bench will take notice of and of what not p. 26 C. 2. p. 54 C. 1. 90 C. 5. p. 98 456 457 458. Of what things the Court will take notice of and of what not and how p. 70 265 C. 2. 331 332 333 334 359 C. 1. 368 369 378 379. 6 Nudum pactum VVhat shall be said to be Nudum pactum and what not p. 58 C. 1. 249 C. 2. 330 C. 2. 7 Nusance For what an Assise of Nusance lies for what not 195 C. 1. O 1 Oath vid. Affidavit What Oath shall be said perjury what not vid. Perjury 2 Obligation How a breach of the Condition of an Obligation ought to be assigned p. 18 C. 1. What is a good Obligation what not p. 28 C. 1. p. 97 C. 1. 212 C. 3. 234 C. 2. 241 C. 2. 277 278 438 C. 2. 3 Offences VVhat are offences at the Common law what not p. 87 C. 1. 215 323 326 C. 1. 4 Office and Officers VVhat Office shall be well granted what not 266 267 c. What Offices and Officers the Common-law takes notice of and what not 338 C. 1. 394 C. 2. 457 458. VVhat Offices may be executed by a Deputy and what not 357 C. 1. 5 Order For what causes orders of Sessions and other orders may be quashed and for what not p. 14 C. 2. p. 85. C. 1. 130 C. 3. 154 C. 1 3 4. 168 C. 1. 173 174 184 185 191 192 207 C. 1. 283 C. 3. 362 C. 1. 368 C. 3. 386 C. 6. 399 C. 1. 475 C. 1. VVhere the Court will not quash erroneous orders 358 C.